Custom, Excise & Service Tax Tribunal
Ashok &Amp Co Pan Bahar Ltd vs Principal Commissioner, Cgst-New ... on 6 April, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI.
PRINCIPAL BENCH - COURT NO. II
Excise Early Hearing Application No. 50424 of 2021
(on behalf of the appellant)
in
Excise Appeal No. 50863 of 2021
(Arising out of order-in-appeal No. 39/2020-21 dated 31.03.2021 passed by the
Commissioner (Appeals-II), Goods and Service Tax, Delhi).
M/s Ashok & Co. Pan Bahar Limited Appellant
Unit -IV, 49-A,
Rama Road Industrial Area
New Delhi-110 015.
VERSUS
Commissioner of Central Tax Respondent
Upper Ground Floor EIL Annexe Building Bhikaji Cama Place, New Delhi.
APPEARANCE:
Shri Manish Pushkarna & Tarun Chawla, Advocates for the appellant Shri Rakesh Agarwal, Authorised Representative for the respondent CORAM:
HON'BLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) HON'BLE SHRI. P. V. SUBBA RAO, MEMBER (TECHNICAL) FINAL ORDER No. 50321 / 2022 DATE OF HEARING: 06.04.2022 DATE OF DECISION: 06.04.2022 ANIL CHOUDHARY:
The appellant has filed the present appeal on 15.07.2021 against order-in-appeal dated 31.03.2021 by which the appeal has been dismissed on the ground of limitation.
2. Brief facts of the case are that the appellant is manufacturer of Pan Masala and Gutka (Pan Masala containing Tobacco), which is dutiable under the compounded levy scheme as applicable till 30.06.2017 (from 1st July, GST was implemented). The appellant has 2 Excise Appeal No. 50863 of 2021 closed down their three manufacturing units (in June 2017) located in different premises which are as follows:-
(i) Unit No. 4 Plot No. 49A, Rama Road, West Delhi, Delhi.
(ii) Unit No. 8 Plot No. 13, Rama Road Industrial Area, West Delhi, Delhi.
(iii) Unit No. 9 Plot No. 62, Rama Road Industrial Area, West Delhi, Delhi.
3. Vide letter dated 22.06.2017, the appellant has requested for sealing of all the three units and pursuant to the said request the Department have sealed all the three units on 26.06.2017. Thereafter, the appellant also surrendered the Central Excise registration number of all the three units on 27.06.2017, mentioning therein that they have permanently ceased to work and to manufacture in these units. Subsequently, on 04.07.2017, the appellant filed refund claim(s) for refund of the duty excess paid, i.e. for return of the proportionate duty for the period they did not operate or manufacture, as the appellant units were working under the compounded levy scheme, under Section 3A of the Act, read with the Pan Masala & Chewing Tobacco Compounding Rules, 2008. All the three refund claims were rejected vide common order in original No. 04/2019-30 dated 29.04.2019, observing that the appellant have not ceased to permanently manufacture in its three units under the Central Excise law read with Rules 16 of the Pan Masala Packing Machines Rules, 2017 & Rule, 17 of Chewing Tobacco Packing Machine Rules.
4. It is further case of the appellant that the aforementioned order- in-original was not served on them. The appellant company by their letter dated 09.07.2020 have requested the Adjudicating Authority for disposal of their refund claims. In response, it was informed that order- 3 Excise Appeal No. 50863 of 2021 in-original is already passed, copy was supplied to the appellant on 28.07.2020 (By speed post). Thereafter, the appellant challenged the order-in-original by filing the appeal before the Commissioner (Appeals), which was filed on 14.09.2020.
5. Learned Commissioner (Appeals) in the impugned order has observed that there is a gap of 467 days from the date of despatch of the order-in-original by post and the stated date of communication, which is 29.04.2019, and further there is a gap of 505 days from the date of the order, and the date of filing of the appeal.
6. Learned Commissioner (Appeals) called for report from the Adjudicating Authority who in his report informed that the order-in- original dated 29.04.2019 was sent to the appellant by speed post No. ED757377345 IN, and the same was not received back undelivered. The ld. Commissioner further recorded - as per the Department the order-in-original was sent by speed post, which was received by the speed post booking centre on 06.05.2019. A copy of the speed post receipt had also been annexed. Further, the Department has stated that on appellant request vide letter dated 09.07.2020, a copy of the order-in-original was again issued and sent to them by speed post, which the appellant has admittedly received on 28.07.2020. Learned Commissioner further observed that as per information on the website of the Postal Department, regarding average time normally taken for delivery of domestic consignment to local and different parts of the country sent by speed post, have been pleased to observe that the apparent maximum average time taken to deliver any consignment in domestic post is 4 to 5 days. It is further observed that from the date 4 Excise Appeal No. 50863 of 2021 of despatch is 06.05.2019, on allowing a period of five days as per information from the postal website, the order in original should have been presumably delivered latest by 11.05.2019. Accordingly, the appeal should have been filed by 09.08.2019 (calculating the limitation from 11.05.2019) including the condonation period of limitation of 30 days. Accordingly, learned Commissioner (Appeals) as per his calculation observed that the appeal have been filed after 505 days from the date of despatch. Accordingly, holding that the appeal is barred by limitation, having been filed beyond the period of 90 days from the presumed date of receipt - 11.05.2019, he was pleased to dismiss the appeal as barred by limitation, in terms of Section 35 of the Act.
7. Assailing the impugned order in appeal, learned Counsel for the appellant urges that admittedly as required under sub-section (1)(a) of Section 37C, Revenue has not produced the proof of delivery. Admittedly, Department have not tendered the order in person. Further, admittedly there is no substituted service by way of affixation etc., as provided under clause (b) and (c) of sub-section (1) of Section 37C. Further, it is not a case of demand on the assessee, rather the appellant-assessee was entitled to refund, and admittedly attended the personal hearing in the adjudicating proceedings. There is no incentive for the appellant to sleep over the matter inspite of alleged service of the order-in-original, despatched by speed post on 06.05.2019. It is further pointed out that the address of the appellant-assessee as mentioned in the order-in-original, as well as on the envelop for despatch by the Department, on 06.05.2019 is - Plot No. 22/62, 49A, Najafgarh Industrial Estate, Shivaji Marg, New Delhi-110015, 5 Excise Appeal No. 50863 of 2021 admittedly is not the address of any of the unit(s) of the appellant company as have been given in the aforementioned table. There is no such premises at the erroneous address, used for despatch by the Department. Evidently, Revenue has mixed the address of the different independent units of the appellant-company, and have used some erroneous address for despatch. Such error in the address has not been taken notice of by the learned Commissioner (Appeals). This erroneous address has also been mentioned on the last page of the order-in-original, mentioning the address to which the order is being despatched. Thus, as the address has been mentioned wrongly for despatch, there cannot be any presumption of service on the appellant. Accordingly, he prays for setting aside the impugned order-in-appeal and further prayer for remanding the matter to the Commissioner (Appeals) for a decision on merit.
8. Learned Authorised Representative appearing for the Revenue relied upon the impugned order and further relies on sub-section (2) of Section 37C wherein it is provided that every order or decision issued under the Central Excise Act shall be deemed to have been served on the date on which the decision/ order is tendered or delivered by post. In the written submissions, learned AR have admitted that the order-in- original was despatched at the erroneous address as noticed herein above. It is further pointed that the order was despatched by speed post on the erroneous address, and has not been received back undelivered. It is further contended that one of the unit of the appellant company is located at 20, Shivaji Marg, Najafgarh Road, New Delhi. It is further contended that the subsequent despatch on the request of the appellant, of the order-in-original, vide forwarding letter 6 Excise Appeal No. 50863 of 2021 dated 10.07.2020 was also made on the aforementioned erroneous address, which admittedly appellant has received on 28.07.2020.
9. Having considered the rival contentions, we find that admittedly Revenue has despatched the order-in-original on 06.05.2019 at the wrong address. Hence, we hold, there can be no presumption of service for want of despatch to the correct address. In this view of the matter, we hold that the presumption drawn by the learned Commissioner (Appeals) is wholly erroneous and against all canons of justice. In this view of the matter, we hold that the appellant have received the order- in-original only on 28.07.2020, and thus they have filed the appeal within the prescribed time as allowable under Section 35 of the Central Excise Act.
10. In view of our findings and observations, we allow this appeal by way of remand and set aside the impugned order in appeal. The matter is remanded to the Commissioner (Appeals) to hear the appellant and decide the appeal on merits. The appellant is also directed to appear and seek opportunity of hearing before the ld. Commissioner (Appeals) with a copy of this order. Thus, the appeal is allowed. Miscellaneous application also stands disposed of accordingly.
(Dictated and pronounced in open Court).
(Anil Choudhary) Member (Judicial) (P.V. Subba Rao) Member (Technical) sb