Customs, Excise and Gold Tribunal - Delhi
M/S. Satpushp Steels(P)Ltd. vs C.C.E. Jaipur on 30 November, 2000
ORDER K.K. Bhatia, Member (T)
1. The brief facts in this case are that the Dy. Commissioner of Central Excise, Jaipur passed an order dt. 1.4.99, in which he disallowed the modvat credit of Rs. 2,72,185/- to the appellants along with imposition of penalty of equivalent amount and another penalty of Rs. 75,000/-. The appellants filed an appeal before the Commissioner (Appeals), Jaipur. The Commissioner (Appeals) vide his order dt. 17.8.2000 has dismissed the appeal of the party on the ground of its being time barred without going into the merits of the appeal. The Commissioner (Appeals) in his order has observed that on going through the case record, he has found that the impugned order was sent to the party by registered post on 1.4.99 and the same was not received back undelivered from the postal authorities. Therefore, it has to be deemed that the same was delivered especilly when it was sent by registered post as prescribed under the provisions of Section 37C of the Central Excise Act, 1944. He has observed that the party filed the appeal before him on 27.9.99 which is beyond a period of three months. He has accordingly, dismissed the appeal as time barred.
2. The present appeal is against the above order of Commissioner (Appeals). The matter is listed today for considering the Stay Petition filed by the appellants. I have heard Shri J.S. Agarwal, Advocate for the appellants and Shri R.C. Sankhla, JDR for the Respondents. The ld. Advocate for the appellants has submitted that the Order-in-Original dt. 1.4.99 apparently is despatched to his clients at Phase-III, RIICO Industrial Area, Bhiwadi as is evident from the address endorsed at the end of this Order, whereas their factory is located in Phase-II of the Industrial Area. Therefore, it is submitted that the Order-in-Original is not delivered to them. It is submitted that they came to know of this order on 7.7.99 when they received a letter dt. 28.6.99 of the Range officer calling upon them to deposit the dues adjudged against them in the impugned order. Consequently, they asked for a copy of the order vide their letter dt. 8.7.99 to the Range Officer and they were provided with the same on 9.7.99. Accordingly, they filed an appeal on 16.7.99 before the Commissioner (Appeals), Jaipur which is well within the prescribed period of three months of the receipt of the order under the Central Excise law. The ld. Advocate for the appellants referred to his letter dt. 29.5.2000 in which the same submissions were made before the Commissioner (Appeals), but the same have not received any consideration by the appellate authority. Consequently, it is pleaded that the dismissal of their appeal at the hands of the lower appellate authority is not legally sustainable. Shri R.C. Sankhla, JDR for the Respondents, on the otherhand contends that the units in the Industrial Area are well known to the postal authorities and since admittedly the copy of the Order-in-Original meant for the noticee party has been duly delivered and not returned back, the presumption is that the same has been received by the appellants within a reasonable period of the date of its despatch i.e., 1.4.99 and the appeal filed on 27.9.99 is rightly rejected by Commissioner (Appeals) as time barred. The ld. JDR has further drawn attention to the fact that the letter dt. 28.6.99 of the Range Officer is sent to the appellants without even mentioning either Phase-II or Phase-III in the address but the same is duly delivered to them. It is therefore, contended that there is no ground to accept that the Order-in-Original was not delivered to the noticee party. I have carefully considered these submissions. The case of the appellants is that the Order-in-Original dt. 1.4.99 was never received by them and they case to know of it only when on 9.7.99 they received a letter dt. 28.6.99 from the Range Officer calling upon them to make the deposit of the duty and penalty amounts adjudged against them in the impugned order. Thereafter they took steps to get a copy of the order and the same was given to them only on 9.7.99. Consequently, they filed the appeal before Commissioner (Appeals) on 16.7.99. It is found from the record that the appellants had raised these contentions before commissioner (Appeals), but the same have not receive adequate consideration and no findings are given on them by the appellate authority. He has dismissed the appeal of the party as time barred only on the ground that the Order-in-Original was sent to the party under registered post and the same is not returned back by the postal authorities. Therefore, it is presumed that the same must have been delivered to the appellants. These findings of the lower appellate authority cannot be countenanced. When certain contentions as to the facts are raised before a particular quasi judicial authority, the same must be considered and the findings recorded on each one of them by such authority. It is felt that these submissions of the appellants merit further verification. The appellants are therefore granted the Stay, the order appealed against, is set aside and the matter remanded to Commissioner (Appeals) to reconsider the submissions made by the appellants. If considered necessary, he can make further enquiry through the Divisional staff for verification of the submissions of the party to arrive at the correct findings. The appellants should be afforded adequate opportunity of hearing in the de-novo proceedings.
3. The appeal is thus allowed by remand in the above terms.
(Announced and dictated in the Court)