Customs, Excise and Gold Tribunal - Delhi
Super Gears (India) vs Commissioner Of Central Excise on 8 March, 2004
Equivalent citations: 2005(179)ELT127(TRI-DEL)
ORDER P.S. Bajaj, Member (J)
1. This order will dispose of COD application moved by the appellants seeking condonation of delay of one year, seven months and twenty days in filing the appeal. The impugned order-in-appeal was passed on 10-52000, whereas the appeal was filed on 9th August, 2002. The COD application was dismissed by this Bench vide order dated 4-2-2003 after hearing both sides. However, thereafter the appellants allegedly moved a Misc. Application for recall of the order and that application instead of posting before me for disposal, was posted for hearing before another Member (Shri K.D. Mankar), who recalled the order passed by me and posted the COD application of the appellants again for hearing. That application could not be legally posted before that Bench and that Bench even had no power to recall the order passed by this Bench. However, without commenting on the validity of the order passed by another Bench, 1 still proceed to decide the COD application of the appellants in terms of order dated 29-9-2003 passed by another Bench.
2. The learned Counsel has contended that the impugned order-in-appeal was never served personally on the appellants and that it could not be pasted on the outer door of their factory premises and that service of the order was not proper. The appellants received the copy of the order only on 23-7-2002 and from that, the appeal is within time. He has referred to the judgment of the Hon'ble Delhi High Court to support his contention in the case of Commissioner of Income Tax v. Dr. K.C. Verma, 2003 (132) TAXMAN 598 (Delhi).
3. On the other hand, the learned JDR, has reiterated the correctness of the impugned order.
4. I have heard both sides and gone through the record. The perusal of the record reveals that the impugned order-in-appeal was passed on 10-5-2000. In the COD application, what has been alleged is that, the impugned order was not received by the appellants before 23-7-2000. No exact date of receipt of the order has been given by them. In the affidavit of Shri Sunil Kalara, partner of the appellants, it had nowhere been categorically slated that the impugned order was received by them on 23-7-2002. The deponent has only sworn that the appellants' unit was closed and it was shifted to Ghaziabad and this closure was intimated to the Department vide letter dated 25-8-2000. But in that letter dated 25-82000, no address was furnished by the appellants to the Department for communication/correspondence purposes. They only intimated regarding the closure of their unit. Under these circumstances, when the appellants did not furnish any address after the closure of their unit, the Department had no option but to paste the copy of the impugned order-in-appeal, on the outer door of their factory premises. The argument of the learned counsel that service by such a mode could not be effected, cannot be accepted in the light of the above detailed circumstances. The ratio of the law laid down in the case of Commissioner of Income Tax v. Dr. K.C. Verma, supra, is not attracted to the facts of the present case. There the assessee had taken the plea that he did not receive the assessment order at all and his version in this regard was accepted by the Court. But, in the instant case, as observed above, the appellants themselves closed the unit and shifted to another place at Ghaziabad without disclosing their new address for the correspondence purposes to the Department. The appellants did contest the proceedings before the lower authorities, but they did not bother to know about the passing of the impugned order against them in May, 2000. No intimation in writing was sent by them to the Department that the impugned order-in-appeal should be conveyed to them at a particular address, after the conclusion of the hearing before the Commissioner (Appeals). Therefore, it is difficult to hold that there was no proper service of the impugned order-in-appeal on the appellants. Consequently, I do not find any sufficient ground to condone the inordinate delay of over one and a half year in filing the appeal. The COD application of the appellants accordingly stands dismissed. The appeal of the appellants is also dismissed as lime-barred.