Custom, Excise & Service Tax Tribunal
M/S. Kundan Casting Pvt. Ltd vs C.C.E. & S.T. Lucknow on 24 September, 2013
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI,
COURT NO. III
Date of Hearing/decision: 24.09.13
Misc. Application No. E/Misc./56347/2013
Stay Application No. E/Stay/56346/2013
Appeal No. E/55972/2013-EX[SM]
[Arising out of Order-In-Appeal No. 217-CE/LKO/2009 dt.23.11.2009 passed by Commissioner (Appeals) of Central Excise, Lucknow]
For approval and signature:
Honble Mr. Rakesh Kumar, Member(Technical)
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. Kundan Casting Pvt. Ltd. Appellant
Vs.
C.C.E. & S.T. Lucknow Respondent
Present: - Sh. Ankit Vishnoi, Advocate - for the appellant Sh P.K.Sharma, Jt. CDR - for the Respondent Coram : Rakesh Kumar Member (Technical) FINAL ORDER NO.57982/2013 Per Rakesh Kumar:-
This is an appeal against the order-in-appeal dt. 23.11.09 passed by the Commissioner (Appeals). The appeal has been filed on 21.01.13 long after the date passing of the impugned order-in-appeal. There is of the miscellaneous application praying that the date on which the copy of the order-in-appeal dt.23.11.09 was received by the appellant i.e. 20.10.12 on application being made to the office of the Commissioner (Appeals) under RTI Act should be treated as date of communication of the order and accordingly the appeal may be admitted as having been filed within time.
2. Heard both the sides.
3. Sh. Ankit Vishnoi, Advocate, stating that he is working in the office of Sh. Amit Awasthi for the last six months and that he represents the appellant, pleaded that the order-in-appeal dt. 23.11.09 though passed after hearing the appellant was not received by them, that appellant, therefore, filed an application under RTI Act on 13.06.11, that only on filing of application under RTI Act, the copy of the order-in-appeal dt. 23.11.09 was supplied to the appellant on 23.10.12 and immediately thereafter, the appellant filed this appeal against the Commissioner(Appeals)s order in Jan13 and that in view of this, the date of communication of the impugned order may be treated as 20.10.12 and the appeal along with stay application may be admitted, as having been filed within the prescribed limitation period.
4. Sh. P. K. Sharma, learned DR, pleaded that there is no justification for delay of more than two years in filing this appeals, that the order-in-appeal had been passed by the Commissioner (Appeals) after hearing the appellant, that when the appellants counsel was present at the time of hearing before the Commissioner (Appeals) and impugned order has been passed after hearing them, the appellants claim of receiving the order on 20.10.12 only on filing the application under RTI Act is difficult to believe, that if application for providing a copy of the order under RTI Act was made on 13.06.11, it is difficult to believe that the Department would take more than one year in giving a copy of the order, that as per letter dt. 24.06.11 of Supdt. (appeals) to the appellants Advocate Sh. P.N.Awasthi, the order had been sent by registered post to the appellant and had been received on 01.12.09 and that in view of this there is no justification for condonation of more than 3 years delay
5. I have considered the submissions from both the sides and perused the records. There is no dispute that the Commissioner (appeals)s Order dt.23.11.09 had been passed after hearing the appellants Representative on 23.10.09. When the matter has been heard by the Commissioner(Appeals) on 23.10.12 and the Commissioner (Appeals)s Order was not received by the appellant, they should have checked up with CCE (Appeals)s office. This is not a case where CCE (Appeals) had passed ex-parte order and the appellant was not aware of the hearing, of this matter. In background of these circumstances, the appellants claim that they did not receive order and received the order only on 20.10.12 when they filed an application under RTI Act, is difficult to believe. Moreover according to the appellant they had filed an application under RTI Act on June11 and in terms of the RTI Act they were expected to received the copy within one month while appellants claim is that they received the copy in Oct2012. It is also seen that there is a letter dt. 24.06.11 of Superintendent, office of Commissioner (Appeals) Lucknow, addressed to Sh.P.N.Awasthi, Advocate, who had appeared before CCE (Appeals) for hearing informing him that the order-in-appeal dt. 23.11.09 had been sent by Registered Post and has been received by the appellant vide Registered Post Receipt No. 8003 dt. 01.12.09. This letter is a clear evidence that impugned order had been dispatched to the appellant and had been received by them on 01.12.09. In view of this the miscellaneous application is without any merit and the same has to be rejected. The appeal, thus has not been filed in time and there is no justification of condoning delay of more than 3 years in filing of this appeal. In view of this, the appeal, miscellaneous application as well as stay application are dismissed.
[Order dictated in the open court] (Rakesh Kumar) Member (Technical) S.Kaur 1