Custom, Excise & Service Tax Tribunal
Bee Electronic Machines Ltd vs Commissioner Of Central Excise on 26 May, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II Appln.No.E/S/99117/13 APPEAL No.E/89374/13 (Arising out of Order-in-Appeal No.SDK/128/M-III/2013-14 dated 13/08/2013 passed by Commissioner of Central Excise (Appeals), Mumbai) For approval and signature: Honble Mr. P.R. Chandrasekharan, Member (Technical) Honble Mr. Anil Choudhary, Member (Judicial) 1. Whether Press Reporters may be allowed to see :No 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 :Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether Their Lordships wish to see the fair copy :Seen of the Order? 4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================
Bee Electronic Machines Ltd., Appellant Vs. Commissioner of Central Excise, Respondent Mumbai Appearance:
Shri.C.R.Venugopal, Director for appellant Shri.Ahibaran, Addl. Comm. (AR), for respondent CORAM:
Honble Mr. P.R.Chandrasekharan, Member (Technical) Honble Mr.Anil Choudhary, Member (Judicial) Date of Hearing : 26/05/2014 Date of Decision : 26/05/2014 ORDER NO Per: P.R.Chandrasekharan
1. The appeal and stay petition are directed against Order-in-Appeal No.SDK/128/M-III/2013-14 dated 13/08/2013 passed by Commissioner of Central Excise (Appeals), Mumbai.
2. Vide the impugned order, the learned lower appellate authority has dismissed the appeal as time barred, inasmuch as the appeal was filed before the said authority much after the passing of the impugned order, even beyond the period of time of condonation. Aggrieved of the same, the appellant is before us.
3. Shri C.R.Venugopal, Director of the appellant, M/s.Bee Electronic Machines Ltd., who appeared for the appellant submits that they had received the impugned order only on 08/04/2013 and therefore, the appeal should have been considered as having been filed in time and therefore, dismissal of the appeal as time barred is not sustainable in law.
4. The learned Additional Commissioner (AR) appearing for the Revenue on the other hand submits that the order appealed against was Order No.156/09-10/AC/W.I/M-III dated 31/03/2010. The said order was sent by Registered Post with Acknowledgement Due to the appellant to their address at 266, Dr.Annie Besant Road, Opp. Passport Office, Worli, Mumbai 400 025 on 16/04/2010 and the postal cover was returned back the remarks refused. Thereafter, the departmental authorities pasted copy of the order on 11/06/2010 in the presence of panch witnesses at the factory address of the appellant at Plot No.C-35, Road No.27, Wagle Industrial Estate, Thane (W) 400 604. Therefore, the order should have been deemed to have been served on 11/06/2010. The normal period of time for filing the appeal of 60 days expired on 11/08/2010 which could have been extended by another 30 days i.e. upto 11/09/2010, whereas the appellant has been filed appeal only on 08/04/2013, that is after a lapse of about 2= years. Therefore, the appeal is time barred. He also relies on the decision of the Honble Apex in the case of Singh Enterprises Vs. CCE, Jamshedpur 2008 (221) ELT 163 (SC) in support of his contention.
5. We have carefully considered the submissions made by both the sides.
5.1 In this particular case, it is seen that the order-in-original was sent by Registered Post to the appellants registered office address and the said letter was returned with remarks refused. Thereafter, the order was pasted on the factory premises of the appellant in the presence of panchas on 11/06/2010. In this factual position, the appeal is clearly time bared and the lower appellate authority has correctly dismissed the same as time barred. The Honble Apex Courts decision in the case of Singh Enterprises (cited supra) also supports this view and holds that the delay is not condonable by any other higher authorities. In these circumstances, we dismiss the appeal as non-maintainable. The stay application also stands disposed of.
(Dictated in Court) (Anil Choudhary) Member (Judicial) (P.R. Chandrasekharan) Member (Technical) pj 1 4