Custom, Excise & Service Tax Tribunal
M/S Fil Industries Limited vs Cce, Jammu on 24 March, 2008
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, PRINCIPAL BENCH,
NEW DELHI, COURT NO.1
Excise Appeal No. 06 of 2008 with Excise Stay No. 06 of 2008
[Arising out of order-in-appeal No. 310/CE/APPL/JAL/2007 dated 27.9.2007 passed by the Commissioner Central Excise (Appeals) Jalandhar]
Date of Hearing/Decision: 24.3.2008
Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
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1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982.
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
authorities?
M/s FIL Industries Limited Appellant
[Rep. by: Mr. J.P. Kaushik, Advocate]
Versus
CCE, Jammu Respondent
[Rep. Mr. A. K. Madan, DR]
Coram: Honble Mr. Justice S.N. Jha, President
Honble Mr. M. Veeraiyan, Member (Technical)
O R D E R
Per Justice S.N. Jha (For the Bench):
This appeal by the assessee is directed against the order of the Commissioner dismissing the appellants appeal summarily as time barred. The submission of the Counsel for the appellant is that were the appellate authority is of the opinion that the appeal is time barred and intends to dismiss the appeal as such, he is required to give opportunity of hearing, and since no such opportunity was given to the appellant in the instant case, the order is fit to be set-aside and matter remanded to the Commissioner for fresh consideration on the point of limitation. It is submitted that in another case involving similar dispute, on merit the Commissioner granted relief to the party.
2. The appeal in question had arisen from the order-in-original of the Additional Commissioner dated 29.6.2006. The case of the appellant is that copy of the order was delivered to them only on 28.3.2007 and, therefore, the appeal preferred by them on 18.4.2007 was well within the period of limitation and it could not be dismissed as time barred. From the order of the Commissioner, it appears that considering the long gap between date of the order-in-original i.e. 29.6.2006 and the alleged date of service of a copy thereof, he called for report from the Additional Commissioner about the date of service and it transpired from the report submitted by the Superintendent that copy of the order had been delivered to the appellant by registered post on 4.7.2006. The Commissioner noted that the delay being of 228 days in filing the appeal, it was beyond his power to condone the delay beyond thirty days after expiry of the period of sixty days which is the prescribed period for filing appeal.
3. Learned Counsel for the appellant reiterated the appellants case that the copy of the order was served only on 28.3.2007 and if opportunity of personal hearing had been given to the appellant, they could have satisfied the appellate authority that the appeal had been filed within the period of limitation. It was submitted that in terms of Section 35A of the Central Excise Act the party is entitled to opportunity of hearing. It was also submitted that even where notice or copy of the order etc is served by registered post there is no presumption that it was served on the person. In support of his contention reliance was placed on the Larger Bench decision of the Tribunal in the case of Margra Industries Ltd., vs. Commissioner of Customs, New Delhi -2006 (202) ELT 244 (Tri.-LB).
4. Section 37C of the Central Excise Act provides for the manner of service of decisions, orders, summons etc. It lays down that any decision or order etc. shall be served on the person for whom it is intended by tendering the decision, order, summons or notice or sending it by registered post with acknowledgement due. If the decision, order, summons etc. cannot be served in the above manner, a copy thereof shall be affixed at some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person. If that too is not possible, service shall be effected by affixing a copy of the decision, order etc. on the notice board of the officer or authority who or which had passed such decision or order or issued such summons or notice. In the facts of the case, the decision in the case of Margra Industries (supra) lends no help to the appellant. From the order of the Commissioner it appears that the Sub-Post Master, Srinagar Airport by letter No. CE-3/792/SK Airport 2006-07 dated 23.8.2007 informed the Department that registered letter No. 792 dated 29.6.2006 (by which copy of the order-in-original had been sent to the appellant) was delivered to the addressee on 4.7.2006. There is no reason to disbelieve the correctness of the said report. There was thus adequate proof service of the copy of the order. It may be mentioned that service of copy of the order on 28.3.2007, relied upon by the appellant, was in response to their letter that copy of the order had not been served. That apparently was the second time service of the order
5. Section 35 of the Central Excise Act lays down that appeal can be filed against order-in-original within sixty days of communication of the decision or order. By virtue of the proviso, the Commissioner may extend the period upto thirty days if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the period of sixty days. The section does not confer any discretion on the Commissioner to further extend the period and condone the delay in filing the appeal beyond the extended period of ninety days. [See the decision in Singh Enterprises vs. Commissioner -2008 (221) ELT 163 (SC)]. The appeal in the instant case was filed after 228 days i.e. well beyond the extendable period and therefore, no meaningful purpose would have been served, or would be served even now if the Commissioner were to be directed to give opportunity of hearing to the appellant.
6. We find no scope for taking another view of the matter and interfering with the order. In the circumstances, waiving the requirement of pre-deposit, we dismiss the appeal.
[Order dictated and pronounced in the open Court]
[Justice S.N. Jha]
President
[M. Veeraiyan]
[Pant] Member (Technical)