Custom, Excise & Service Tax Tribunal
M/S.Siddhartha Processors (P) Ltd vs Cce, Jaipur on 10 September, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
DIVISION BENCH
Court No.3
E/COD/123/2012 in Appeal No.E/483/2011
E/ROA/156/2012 in Appeal No.E/483/2011
(Arising out of OIA No.219(HKS)/CE/JPR-II/2006 dated 14.10.2006 passed by the CCE (Appeals), Jaipur)
Date of Hearing/Decision: 10.09.2013
For approval and signature:
Honble Mrs.Archana Wadhwa, Member (Judicial)
Honble Mr.Manmohan Singh, 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?
N0
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3
Whether Their Lordships wish to see the fair copy of the Order?
seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s.Siddhartha Processors (P) Ltd. Appellant
Vs
CCE, Jaipur Respondent
Present for the Appellant: Shri Bipin Garg, Advocate Present for the Respondent: Shri B.B.Sharma, DR Coram: Honble Mrs.Archana Wadhwa, Member (Judicial) Honble Mr.Manmohan Singh, Member (Technical) FINAL ORDER NO.57716/2013 PER: ARCHANA WADHWA The ROA application as also COD application filed by the appellant are being disposed of by a common order. It is seen that the appeal was rejected by the Tribunal vide its Final Order No.936/2011-EX dated 4.11.2011 on the ground that the same was barred by limitation, inasmuch as impugned order was passed on 12.4.2006 and the appeal stands filed on 12.1.2011 and the appellants have not filed COD application.
2. Ld.Advocate appearing for the appellant submits that as the final order was passed on the basis of appeal being time barred and there being no COD application and he prays that the same may be recalled. Inasmuch as objection as regard that appeal being barred by limitation was never communicated to them and the matter was earlier listed for disposal of stay petition.
3. In view of above, we allow ROA application, and recall the final order No.936/2011-Ex dated 4.11.2011.
4. Now, the appellants have filed COD application. As per ld.Advocate, the impugned order was passed on 12.4.2006, which was received by them on 14.10.2010 and the appeal was filed thereafter within the period of three months on 12.1.2011. As such, he submits that inasmuch as the limitation period has to be counted from the date of communication of the impugned order, the appeal cannot be held to be barred by limitation. Elaborating his argument, he submits that though the impugned order was passed on 12.4.2006 but the same was not received by the appellant, as their factory was lying closed since 2005 onwards. He submits that subsequently the said factory was taken over by the new management. When the Revenue approached them for recovering the dues, they came to know about the impugned order of the Commissioner(Appeals) vide which he has allowed the Revenues appeal. He submits that even the appellant was not aware of filing of appeal by the Revenue before the Commissioner (Appeals), as is clear from the above observation of the appellate authority that the assessee did not cause any appearance before him on three dates of personal hearing. As such, he submits that it is only subsequently they procured the copy of order from the department and filed appeal.
5. Countering the arguments, ld.DR draws our attention to the report received by the appellant, from the office of the Commissioner under the cover of his letter dated 31.07.2013. It stands admitted by the Revenue that the factory was lying closed and the impugned order sent to them under registered post was returned by the postal authority with the remarks closed. Accordingly the Superintendent (Appeals), Jaipur vide his letter dated 21.4.2006 requested the jurisdictional Deputy Commissioner of Central Excise, Bhilwara for serving said order in appeal under their acknowledgement which may be sent to the appellant.
6. Para 4 of letter dated 31.7.2013 reads as under:-
4. The field staff, in pursuance of this, tried to contact a responsible person/officer of the appellant unit, which was lying closed for last 2 years. During this course, when no such person/officer could be found at the unit, at his residence at B-78, Shastri Nagar, Bhilwara. Since, he also was not available at his residence, the said OIA was served to Siddhartha Processors (P) Ltd., Bhilwara, by affixing a copy thereof at the main gate of the residence of Shri P.C.Bohra, Director of the appellant unit in terms of section 37C(1) (b) of Central Excise Act, 1944. Panchnama dt.15.07.2006 was drawn on spot detailing these proceedings. A copy of each of, returned envelope/letter having remark CLOSED; letter dt.21.4.2006 of the Supdt. (Appeals)-II), Jaipur , Panchnama dt.15.7.2006 is enclosed for ready reference and placing before the Honble CESTAT for perusal.
5. In view of the above Panchnama Proceedings, the provisions of Section 37C (1) (b) of Central Excise Act, 1944 stand fully complied with and therefore in terms of Section 37C (2) of the Act ibid, the said OIA should be deemed to have been served on the appellant unit on 15.7.2006.
7. As such, Ld.DR submits that in view of the above, Panchnama Proceedings, the provisions of Section 37C (1) (b) of Central Excise Act, 1944 stand fully complied with and therefore in terms of Section 37C (2) of the Act ibid, the said OIA should be deemed to have been served on the appellant unit on 15.7.2006
8. In his rejoinder, Shri Bipin Garg, ld.Advocate submits that he has also filed an affidavit to the effect that panchnama had not reflected the correct position inasmuch as the impugned order was not pasted to the residential door. He submits that he may be allowed cross examination of witnesses and inspector who drew panchnama in question so as to establish the fact that the said order in appeal was never pasted to the residential door.
9. We have considered the submissions made by both sides and have gone through the records placed before us. Admittedly the order in appeal was passed by the Commissioner (Appeals) on 12.4.2006 and the same was sent to the appellant on the available address under the normal course under registered AD. Admittedly the appellants factory was lying closed and the said registered AD was received back to the department with the remarks closed. The Revenue thereafter did not sit idle and try to serve impugned order on the assessee in terms of law on the subject. The Superintendent (Appeals), Jaipur received back the impugned order undelivered and requested the jurisdictional Deputy Commissioner of Central Excise, Bhilwara to serve the said order on the appellant, in person. Accordingly, the field officer was sent to serve the order to the appellant. A proper panchnama was drawn on 15.7.2006 in the presence of witness Shri J.P.Aagal; and Shri Kamlesh Pancholi who were requested by the officer to join in the proceeding. As the factory was lying close, there was no responsible person available in the factory as per proceeding drawn under panchnama. The officer alongwith witness at the request of the officer accompanied to the residence of Shri P.C.Bohra who was the director of the company. As Shri P.C.Bohra was not found in his residence premises, the order was pasted at the main door of his residence B-78, Shastri Nagar, Bhilwara. Panchnama also recorded that the said proceedings were concluded between 11 am to 11.30 am. The said panchnama bears the signature of the inspector as also of two witnesses on the last page of the panchnama as also to the first page of the panchnama. This fact shows that panchnama drawn was in accordance with law and reflected the correct position. The appellants have not been able to show any reason to doubt the correctness or authenticity of said panchnama drawn in accordance with law on 15.7.2006. As such, we find no justification in the appellants stand that said panchnama has not reflected the correct position of law and find no justifiable reason to doubt authenticity of the same. Accordingly, we find no merits in the appellants prayer for cross examination of witnesses or inspector.
10. If that be so, we conclude that the impugned order was served upon the appellant on 15.7.2006, in which case the appeal filed on 12.1.2011 would hopelessly be barred by limitation. Accordingly, we reject the COD application and hold that the appeal to be barred by limitation and the same is accordingly rejected.
11. ROA application and COD application as also appeal gets disposed in the above manner.
(Pronounced in the open court)
(MANMOHAN SINGH) (ARCHANA WADHWA)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
mk
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