Custom, Excise & Service Tax Tribunal
Vedanta Ltd vs Jodhpur 1 on 2 December, 2019
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
EXCISE MISCELLANEOUS APPLICATION No. 50551 of 2019
IN
EXCISE Appeal No. 50574 of 2019
(Arising out of Order-in-Appeal No. 01(CRM)/ CE/ JDR/2019 dated
01.01.2019 passed by COMMISSIONER (Appeals), Central Excise & Service
Tax, Jodhpur)
M/s Vedanta Ltd .... Appellant
(Formerly known as M/s Cairn India Ltd)
Village- Nagana, Via- Kawas, N.H.-112,
Barmer, Rajasthan- 342001
Versus
Commissioner of Central Goods .... Respondent
& Service Tax, Jodhpur 1 G-105, New Industrial Area, Opp. Diesel Shed, Basni, Jodhpur, Rajasthan APPEARANCE:
Mr. Alok Aggarwal, Mr. Shubham Tyagi, Advocate for the Appellant Mr. P. Juneja, Authorised Representative for the Respondent CORAM : HON'BLE MR.JUSTICE DILIP GUPTA, PRESIDENT HON'BLE MR. BIJAY KUMAR, MEMBER(TECHNICAL) Date of Hearing/ Decision: 2 December, 2019 MISCELLANEOUS ORDER: 50857 / 2019 FINAL ORDER: 51577 / 2019 JUSTICE DILIP GUPTA The Appellant had filed an appeal before the Commissioner (Appeals) under Section 35 (1) of the Central Excise Act 19441 to assail the order dated 29 August, 2017 passed by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur2. The Assistant Commissioner _______________________________
1. the Act
2. the Assistant Commissioner 2 E/50574/2019 had, by the said order, rejected the refund claim of the Appellant amounting to Rs.19,34,14,257/-. This refund claim had been filed under Section 11 (B) of the Act. The Commissioner (Appeals) dismissed the appeal as being barred by time since, according to the Commissioner, the appeal was filed on 4 September, 2018 against an order dated 29 August, 2017 passed by the Assistant Commissioner, which order had been served upon the Appellant on 12 September 2017.
2. The Appellant had claimed refund of Oil Cess paid in excess by the Appellant on account of difference in the foreign exchange rate applied by the Appellant at the time of invoicing (which was the provisional exchange rate) and the foreign exchange rate prevailing at the time of payment, which was the relevant rate for computing the transactional value of Crude Oil in terms of the Crude Oil Sale Agreement. The refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act. A show cause notice dated 9 August, 2017 was, however, issued by the Assistant Commissioner seeking an explanation from the Appellant as to why the refund claim filed by the Appellant should not be rejected. A detailed reply was filed by the Appellant, but the Assistant Commissioner by order dated 29 August, 2017 rejected the refund claim.
3. It transpires that the Appellant had previously filed another refund claim on 24 March 2017 for the period March 2016 to May 2016 for approximately an amount of 3 E/50574/2019 Rs.117,50,76,655/-. It is stated that the said refund claim was filed on grounds almost similar to the grounds raised in the refund claim out of which the present Appeal arises. The Adjudicating Authority rejected the said refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess during the period March 2016 and May 2016 and that the Appellant had not been unjustly enriched. It is further stated that after the Appellant received the said order dated 8 June, 2018, it submitted an application dated 2 August 2018 for payment of the amount under the aforesaid order and also requested that the application filed by the Appellant seeking refund for the subsequent period be also decided. The Appellant claims that as the Assistant Commissioner informed the Appellant that the said refund claim had already been rejected, the Appellant submitted a letter on 3 August 2018 for supply of the order and it is, thereafter, that the Assistant Commissioner supplied the order dated 29 August 2017 to the Appellant by hand on 6 August 2018 and also sent the order by speed post on 6 August 2018, which speed post was received by the Appellant on 11 August 2018. The Appellant filed an appeal before the Commissioner (Appeals) on 4 September, 2018 within a period of sixty days from the date of communication of the order which is the limitation stipulated in Section 35 (1) of the Act, but the appeal was dismissed by the Commissioner (Appeals) as being barred by time since according to the Commissioner (Appeals) 4 E/50574/2019 the order was served upon the Appellant on 12 September 2017.
4. It will, at this stage, be useful to reproduce Section 35 (1) of the Act which deals with filing of appeals to the Commissioner (Appeal) and it is as follow:
" Section 35 (1) Appeals to Commissioner (Appeals).
(1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Principal Commissioner of Central Excise or Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days."
5. The Commissioner (Appeals), as noticed above, dismissed the appeal filed by the Appellant on 4 September 2018 by order dated 1 January, 2019 finding it to be barred by time. The relevant portion of the order passed by the Commissioner (Appeals) on this aspect is reproduced below:
"6.1 I find that Order-in-Original No. 28/2017-R was issued on 29.08.2017 and appellant has contended in Appeal Form ST-04 that the said OIO has been received on 06.08.2018, it appeared that there was abnormal delayed in receipt of OIO from the date of issue. Therefore, this office vide letter dated 25.10.2018 has asked the adjudicating authority to intimate the actual date of delivery of the impugned order along with the documentary proof. The adjudicating authority vide letter dated 20.11.2018 has informed that the OIO was issued on 29.08.2017 and the same has been sent through speed post No. ER92418751IN dated 01.09.2017 and same has not been returned back as per their office record. Further to ascertain the actual date of delivery of impugned order to the appellant, this office vide letter dated 03.12.2018 & 27.12.2018 has asked Postal Department, Jodhpur to intimate the actual date of delivery of the impugned order. The Postal 5 E/50574/2019 Department, Jodhpur vide their letter F. No. CCC/Jodh HO dated 04.12.2018 has informed that the said speed post No. ER92418751IN dated 01.09.2017 has been distributed to receiver on 12.09.2017 by the Branch Post Office, Bandra (Kawas).
6.2 I find that the Appellant contested that they were informed vide dated 02.08.2018 by the adjudicating authority that the matter has been decided and Order rejecting the refund claim has already been issued. Since, the appellant was not in receipt of the said order, a request was made by the appellant vide letter dated 03.08.2018 seeking attested copy of the said Order, which was supplied vide letter date 06.08.2018. On receipt of the Order-in-Original on 06.08.2018 the appellant being aggrieved filed this subject appeal on 04.09.2018. Hence they have filed appeal within time limit of 60 days from the receipt of the impugned order.
6.3 I find that Order-in-Original No. 28/2017-R dated 29.08.2017 has been sent through speed post No. ER92418751IN dated 01.09.2017 as per procedure prescribed under Section 37C of Central Excise Act, 1944 and same has not been returned back as per adjudicating authority's office record. Further, in this regard this office has made correspondence vide letter dated 03.12.2018 & 27.12.2018 with Postal Department, Jodhpur and they have confirmed vide letter dated 04.12.2018 that the said speed post No. ER92418751IN dated 01.09.2017 has been distributed to receiver i.e. Appellant on 12.09.2017 by the Branch Post Office, Bandra (Kawas) whereas the Appellant filed appeal on 04.09.2018. I find that they were required to file the appeal on and before 31.10.2017 as per provisions to Section 35 (1) of the Central Excise Act, 1944. The Commissioner (Appeals) is empowered to condone delay in filing appeal for further thirty days in terms of proviso to 35 (1) of the Central Excise Act, 1944.
------ ------ ------
In view of above, I find that the appellant has delayed in filing this appeal 308 days from the issue/receipt of the impugned order. I find that as per proviso clause under Section 35 of the Central Excise Act, 1944, the Commissioner (Appeals) may be condoned delay in filing appeal of thirty days. In the instant case as the appeal filed on 04.09.2018 is beyond permissible time limit of thirty days hence cannot be condoned.
7. I find that various Tribunal/ Courts have held that Commissioner (Appeals) has no power to condone delay beyond statutory prescribed period.
8. In view of above, I hold that the appeal filed by Appellant is time barred in terms of proviso to 35 (1) of the 6 E/50574/2019 Central Excise Act, 1944. I, therefore, dismiss the appeal without going into merits of the case."
[emphasis supplied]
6. It has been specifically stated in this Appeal that the finding of the Commissioner (Appeals) that the order dated 29 August, 2017 was sent by speed post bearing no. ER924187517IN on 1 September, 2017 is factually incorrect. It has been stated that the envelope of the aforesaid speed post sent on 1 September 2017 bearing no. ER924187517IN contained a letter number C.No.: CE-5/02/Vedanta/Royalty/17- 18/1740 that was issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and related to an entirely different matter. It has been emphasized that the said envelope did not contain the order dated 29 August 2017 and the said envelope was also not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur in the Division Office who had passed the order dated 29 August, 2017 but was dispatched by the office of the Superintendant in the Range Office and, therefore, proof of delivery of this envelope on the Appellant on 12 September 2017 had nothing to do with the service of the original order upon the Appellant. Grounds D and E that mention the aforesaid facts are reproduced below:
"D. On checking internally with the Appellant's staff, the Appellant found that it had not received any consignment with Speed Post No. ER924187517IN dated 01.09.2017 (received on 12.09.2017), rather it had received a Departmental communication vide Speed Post No. "ER924187517IN" which might be the correct tracking number (this number is similar to the number provided in the Impugned Order-in-Appeal). However, the envelope 7 E/50574/2019 received vide Speed Post No. ER924187517IN contained letter C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 dated 01.09.2017 issued by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Headquarters 12/3, Civil Lines, Residency Road, Jodhpur. This letter dated 01.09.2017 has been issued by altogether different range office and relates to altogether different case of the Appellant. The Order-in-Original dated 29.08.2017 was issued vide F. No. V(Rfd.)18/JDR/121/2017- 1552-56 by Assistant Commissioner, Central Tax, Division-B, 4, Narpat Niwas, Near Officers Mess, Air Force Road, Ratanada, Jodhpur.
The envelope for Speed Post No. "ER924187517IN" dated 01.09.2017 is annexed herewith and marked as "Annexure J".
E. The envelope clearly captures the fact that the letter has been issued and sent by the Superintendent, Central Goods and Service Tax, Range-II (Balotra), Jodhpur, and not by the Adjudicating Authority. Hence, the proof of delivery provided by the Adjudicating Authority to support its contention is principally fallacious. Therefore, in absence of any evidence to show that the Order-in- Original dated 29.08.2017 had been supplied to the Appellant on 12.09.2017 (i.e. within 15 days from the date of issue of Order-in-Original), the impugned Order- in-Appeal deserves to be set aside."
7. The Appellant has also stated in this Appeal that since it had not received the original order dated 29 August, 2017 on 12 September, 2017, it filed an application under the Right to Information Act on 9 January, 2019 seeking the following information:
"1. Photo copy of the dispatch register vide which order-in- original No. 28/2017-R dated 29 August 2017 (F. No. V(Rfd.)18/JDR/121/2017-1552-56) was sent to M/s Cairn India (Now Vedanta Limited).
2. Copy of the Speed post/Registered Post receipt along with the tracking No. for dispatch of the aforesaid O-I-O No. 28/2017 dated 29/08/2017."8
E/50574/2019
8. The Assistant Commissioner by letter dated 5 February 2019 supplied a copy of the dispatch register as also the speed post register.
9. The Appellant has further stated in this Appeal that as the said documents supplied to the Appellant under the Right to Information Act appeared to be tampered with, an inspection of the records was requested on 20 February 2019 and the inspection was allowed on 20 February, 2019. On the basis of the inspection carried out, an affidavit of the two advocates who had inspected the records has also been filed with this Appeal and it is reproduced below:
" AFFIDAVIT Affidavit of Shir D.K. Nayyar S/o Shri H.C. Nayyar and Shri Shubham Tyagi S/o Shri Parag Sharma both working as Advocates with CTS Law firm having office at A-3/31, Sri Sai Kunj, Sector D-2, Vasant Kunj, New Delhi-110070. Both of us had undertaken inspection of Dispatch Register and Speed post Register before the Assistant Commissioner Central Goods and Service Tax, Division-B, Jodhpur on 20/02/2019. As a result of inspection we solemnly affirm and state as under-
With regard to Speed Post Register-
1. That on the relevant page the party name was written in Hindi except Vedanta limited which was written in English and M/s Vedanta Limited was written with a different pen when compared with other entries on the said page.
2. That the Speed Post Register contained the Speed post No. series from 28/08/2017 to 13/09/2017 starting from No. ER90.... except the Speed Post No. mentioned under dated 01/09/2017 for Vedanta Limited which was starting from series ER924..... It was the sole speed Post No. from the series ER924.
3. That the entry under Dated 01/09/2017 appeared to be inserted since the Speed Post No. of the above letter 9 E/50574/2019 appears on the same line, while for all other entries the Date was mentioned on the top in separate line and below the name of party, File No. followed by Speed Post No. is mentioned.
4. That the Page No. on the speed post register were overlapped.
5. That the Speed Post register was not authenticated. With regard to Dispatch Register-
1. That few pages were torn from the end of the page.
2. That under Sl. No. 1555 whitener was found used under column stamp used which does not appear on the copy supplied initially under RTI reply.
3. That on request, the officers could not produce any evidence of service of Order-in-Original No. 28/2017-R dated 29/08/2017 (F. No. V(Rfd.)18/JDR/121/2017- 1552-56). Even for the service of Speed Post No. ER924187517IN no evidence of service was available with the Central Tax officers and they expressed their helplessness.
The said inspection was under in the presence of Shri Gajendra Chandavat, Superintendent (Technical) Central Tax Division-B, Jodhpur and he was duly informed of the results of inspection"
10. When the matter was earlier taken up by the Tribunal on 11 April, 2019, submissions were made by the learned Counsel for the Appellant on the basis of the facts stated in the appeal and the affidavit and a detailed order was passed, which is reproduced below:
" The Commissioner (Appeals) by order dated 1 January, 2019 dismissed the appeal filed by the appellant against the Order-in-Original dated 29 August, 2017 for the reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abnormal delay. The Commissioner (Appeals), therefore, sought a report from the Adjudicating Authority as to the correct date of actual delivery of the impugned order with documentary proof. The Adjudicating Authority, as has been noticed by the Commissioner (Appeals) in paragraph 6.1 of the order, informed that the Order-in-Original was issued on 29 August, 2017 and it was sent by Speed Post No. ER92418751IN (should be ER924187517IN) dated 1 September, 2017 to the 10 E/50574/2019 appellant and the same was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Appeals) that the aforesaid letter was actually delivered to the Appellant on 12 September 2017 by the Branch Post Office, Bandra (Kawas).
2. Shri Alok Aggarwal, learned Counsel of the Appellant has placed before us the envelope bearing Speed Post No. ER924187517IN and has stated that the envelope in fact contained a letter dated 1 September, 2017 bearing No. 1740 sent by the Office of Superintendent, Central Goods and Service Tax Range. He has also placed copy of the envelope sent by office of the Assistant Commissioner, Central Goods and Service Tax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the Appellant received on 11 August, 2018, though it was earlier received by the Appellant by hand on 6 August, 2018.
3. Learned Counsel for the Appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal.
4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN, ER9033505IN, ER902034718IN and ER 0902034695IN.
5. It is, however, seen that as regard entry of date 1 September, 2017, the name Vedanta Limited in English is written with Speed Post No. ER824187517IN.
6. From the aforesaid, it is contended by the learned Counsel for the appellant that the entry of Vedanta Limited against date 1 September, 2017, has been subsequently inserted. It is suggested that this entry instead of indicating the name of the sender, as in the other entries of 31 August 2017 and 4 September, 2017, mentions the name of the recipient as Vedanta Limited and the Speed Post number begins with ER824, whereas all the other Speed Post numbers in this page contained in entries of 31 August, 2017 and 4 September, 2017 bear Speed Post numbers beginning with ER902.
7. Learned Counsel for the appellant has also placed the affidavit of two Advocates namely Shubham Tyagi and Shri D.K. Nayyar who had undertaken the inspection of speed post register and despatch register on 20 February 2019. They have stated in the affidavit that the entry against date 1 September 2017 appears to have been inserted as not only it bore a speed post number beginning with 824 but Vedanta 11 E/50574/2019 Limited was written in English, whereas the other entries were written in Hindi and in a different style when compared with the other entries on the said page.
8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the Appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act.
9. In this view of the matter, the contents of the despatch register and the speed post register assumes importance.
10. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication Cell to file his personal affidavit in response to the affidavit of the two lawyers which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tampering of the record shall be undertaken by the respondent in the register."
11. Pursuant to the aforesaid order, the Assistant Commissioner has filed an affidavit, which is reproduced below:
"Both the register viz. Speed post register and dispatch register are maintained by a dealing assistant namely Mrs. Sunita Java, aged about 52 years, who is an MTS (Multi Tasking Staff) posted in Division office since 2015. To ascertain the facts, a statement of Mrs. Sunita Java was taken by me on 08.05.2019. After examination of the Affidavit submitted by Sh. Shubham Tyagi & Sh. D.K. Nayyar, dispatch register, speed post register and the statement made by the dealing assistant, I solemnly affirm and state as under:-
With regard to Speed Post Register:-
1. Name of the assessee was written as M/s Vedanta Limited in the Order in Original No. 28/2017-R dated 29.08.2017 and the same has been copied by the dealing assistant in the speed post register. The same practice can be seen on other pages also, for example on page No. 72 and 79, where the name of the assessee is again in English.
2. The dealing hand has intimated that the said order in Original was given by hand to the concerned officer of Balotra range for service to the assessee. The said Order was then sent by Balotra range through Speed post ER924187517IN, which was then informed to dealing hand, who mentioned the same number in the Speed post register of the division office. It is 12 E/50574/2019 submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses.
3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the fact that Mrs. Sunita Java is only 10th passed.
4. On examination of the speed post register it can be seen that the numbering of the pages has been corrected by overwriting. The dealing assistant who maintains these registers is not highly educated and therefore overwriting was not intentional.
5. The speed post register is maintained for internal monitoring purpose only.
With regard to Dispatch Register:-
1. The dealing assistant in her statement tendered before me on 08.05.2019 stated that the register was closed at the end of the year 2017 and was kept in her table drawer after that. After receipt of letter dated 02.08.2018 from the assessee M/s Vedanta Limited, seeking therein the status of the show cause notice, when the dealing assistant was asked about dispatch of this order, She checked the register and found it in torn condition on 02.08.2018. She never brought this in notice of any one in the office till this was pointed out during the inspection done by Sh. Shubham Tyagi and Sh. D.K. Nayyar on 20.02.2019.
2. The dispatch serial No. 1555 against which there is whitener does not pertain to the assessee i.e. M/s Vedanta Limited but pertains to CGST Range X Balotra. She has stated that she does not remember anything as to how the whitener has come against the dispatch entry 1555. She also told that she keeps these register in her table drawer which is without lock and key and is unguarded.
3. There is no such practice to further monitor the delivery of post to the receiver.
[emphasis supplied]
12. Today, when the matter has been taken up, learned Authorised Representative of the Department has submitted the original dispatch register and the original speed post register. Scanned copies of the relevant page 80 of the Speed Post Register with an earlier page and the subsequent page are as follows:
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E/50574/2019 14 E/50574/2019 15 E/50574/2019 16 E/50574/2019
13. Learned Counsel for the Appellant has made the following submissions:
(i) The order dated 29 August 2017 was received by the Appellant by hand only on 6 August 2018 and the Appellant also received a copy of the said order sent on 6 August, 2018 by speed post on 11 August 2018. The Appeal filed by the Appellant on 4 September, 2018 was, therefore, within the time stipulated of 60 days from the service of the order as provided for in Section 35 (1) of the Act;
(ii) What document was actually contained in the envelope sent by speed post bearing No. ER924187517IN on 1 September, 2017 was a letter dated 1 September 2017 with No: C.No.: CE-5/02/Vedanta/Royalty/17-18/1740.
This envelope containing the said letter was received by the Appellant on 12 September 2017. The envelope was sent by the Superintendant, Central Goods and Service Tax, Range II (Balotra), Jodhpur (Rajasthan) in the Range Office with subject "licence granted by Government to a company to exploit a natural resource is a taxable service and hence liable for service tax". The order dated 29 August, 2017 was not contained in the envelope sent on 1 September, 2017 by Speed Post No. ER924187517IN.
(iii) A bare perusal of the speed post register would indicate that the entry relating to 1 September 2017 has been subsequently inserted between the date 31 August 2017 and 4 September 2017. All the other entries preceding 1 September 2017 and post 1 September 2017 contain speed post nos. which begin with ER90.... Only the entry relating to 1 September 2017 begins with speed post no. ER92...which clearly shows manipulation in the speed post register. There is a gap of at least three lines in the entries made in the speed post register when a date changes and gap of one line in between entries of the same date. However, there is no gap of any line at all in 17 E/50574/2019 between the last entry of date 31 August 2017 and the date 1 September, 2017. In fact 1 September 2017 has been written on the same line in which the last entry relating to the earlier date 31 August 2017 ends;
(iv) In this Appeal Memo as also the earlier order dated 11 April 2019 passed by the Tribunal, there is a clear averment that the envelope said to have been sent on 1 September, 2017 with speed post no. ER924187517IN did not contain the order dated 29 August, 2017 and in fact contained a letter dated 1 September 2017 sent by the Superintendent of Central Goods and Service Tax, Range- II, Jodhpur in connection with an entirely different matter, but neither has any document been placed by the Department to show when and how the said letter dated 1 September 2017 was sent to the Appellant by the Range Office nor there is denial of this fact in the affidavit filed by the Assistant Commissioner;
(v) There is no plausible reason as to why the order dated 29 August 2017 passed by the Assistant Commissioner in the Division Office would be sent by speed post by the Range Office. The show cause notice resulting in the order dated 29 August 2017 and the order dated 29 August 2017 were sent to the Appellant by speed post on 6 August 2018 by the Division Office and not the Range Office;
(vi) The statement made in the affidavit of the Assistant Commissioner that the order dated 29 August, 2017 was given by hand to a concerned officer of the Range Office at Balotra for service upon the assessee and, thereafter, the said order was sent to the Appellant by the said Range Office by speed post is apparently incorrect for the reason that no supporting documents to substantiate the said statement have been filed;
(vii) It is also difficult to comprehend as to how postal expenses could have been minimised in requiring the Balotra Range Office to serve the order upon the Appellant, when both the Division Office and the Balotra 18 E/50574/2019 Range Office are located in the same city. In fact, a lame excuse has been made by the Assistant Commissioner in the affidavit that it is a common practice to send the post through Range office. The show cause notice and the order sent to the Appellant on 6 August 2018 by speed post were sent from the Division Office and not the Range Office.
(viii) The Department should have maintained proof of delivery of the service of the order in accordance with Section 37C of the Act, particularly when the limitation provided for in Section 35(1) of the Act requires an appeal to be filed within sixty days from the date of the communication of the order, but that was not done.
14. Learned Authorised Representative of the Department has, however, supported the impugned order on the basis of the statement made by the Assistant Commissioner in the affidavit that has been filed. Shri Mohan Das, Superintendant in Division- C, Jodhpur who has brought the speed post register and the dispatch register, however, stated that since the speed post stickers were not available in the post office from where letters by speed post were sent by the Division Office, the envelope containing the order was sent to the Balotra Range Office for dispatching it to the Appellant.
15. The submissions advanced by learned Counsel for the Appellant and the learned Authorised Representative of the Department have been considered. The original speed post register, the original dispatch register and the letter dated 1 September, 2017 sent by the Superintendant in the Central Goods and Service Tax, Range-II, Jodhpur (Range Office) have also been perused.
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E/50574/2019
16. The proceedings had arisen out of a refund claim filed by the Appellant under section 35 (1) of the Act on 30 May 2017. The claim pertained to the period commencing June 2016 upto August 2016 and from January 2017 upto March 2017. The refund was claimed by the Appellant because it claimed to have paid excess Oil Cess on account of difference in the foreign exchange rate applied by the Appellant at the time of invoicing and the exchange rate prevailing at the time of payment. The refund claim was rejected by the Assistant Commissioner by order dated 29 August, 2017 on merits as also on account of unjust enrichment.
17. The contention of the Appellant is that prior to the filing to the refund claim on 30 May 2017, the Appellant had earlier also filed a refund claim on 24 March 2017 for the period March 2016 to May 2016 and though the Assistant Commissioner had rejected the refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess and that the Appellant had not been unjustly enriched. This order was received by the Appellant on 2 August 2018, on which date the Appellant had also requested that a decision be taken on the refund application subsequently filed by the Appellant on 30 May, 2017. However, the Appellant was informed that the said claim had been rejected. Thereafter, the Appellant made a request on 3 August, 2018 for making available the order. This order dated 29 August, 2018, according to the Appellant, was then made available to the 20 E/50574/2019 Appellant by hand on 6 August, 2018 and the order was also sent to the Appellant on 6 August, 2018 by speed post bearing no. ER956930766IN from the office of the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur. It was received by the Appellant on 11 August, 2018. Thus, according to the Appellant, the appeal that was filed before the Commissioner (Appeals) on 4 September, 2018 was within sixty days from the date of communication of the order and could not have been rejected as being barred by time.
18. The Commissioner (Appeals) did not accept the contention of the Appellant that the limitation for filing the appeal would commence from 6 August, 2018, on which date the order was made available to the Appellant. According to the Commissioner (Appeals), the order dated 29 August, 2017 had been served upon the Appellant on 12 September, 2017 through an envelope that was sent by speed post on 1 September, 2017, bearing no. ER924187517IN.
19. Thus, what has to be examined in this Appeal is whether the order dated 29 August, 2017 had actually been served upon the Appellant on 12 September, 2017 as contended by the Department or on 6 August, 2018 as contended by the Appellant.
20. The contention of the Department that the order dated 29 August, 2017 was served upon the Appellant on 12 September, 2017 is based only on the service of an envelope sent to the Appellant by speed post bearing no. ER924187517IN on 12 September, 2017. The Appellant has 21 E/50574/2019 categorically stated that the envelope sent by speed post bearing no. ER924187517IN did not contain the order dated 29 August, 2017. According to the Appellant, the said envelope contained a letter dated 1 September, 2017 sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and this letter bore no. C.No.: CE-5/02/Vedanta/Royalty/17-18/1740.
21. In order to ascertain the veracity of the facts stated by the Appellant in the memo of appeal and the affidavit filed by the two advocates who had inspected the original records, a detailed order was passed on 11 April, 2019, pursuant to which the original speed post register and the original dispatch register have been produced by the Department. The Assistant Commissioner has also filed his personal affidavit.
22. The Appellant had specifically stated in the memo of appeal before the Commissioner (Appeals) and has also categorically stated this Appeal that the order dated 29 August, 2017 was not served on the Appellant prior to 6 August, 2018. The speed post register has been very carefully perused. It shows that after each change of date, there is a gap of at least three lines or the next date starts on a different page. It also shows that before an entry of a particular date starts there is a gap of one line and after each entry of a particular date, there is also a gap of at least one line. What transpires from a perusal of the relevant page 80 of the Speed Posts Register in connection with date 1 September, 2017, is that there is no gap of even a single line after the last entry of date 31 August, 2017 22 E/50574/2019 and writing of the date 1 September, 2017. In fact 1 September 2017 has been written on the same line in which the last entry relating to the previous date 31 August, 2017 ends. As stated above, there should have been a gap of at least three lines after the last entry of 31 August 2017 ended and the writing of date 1 September 2017. If the entry relating to 1 September, 2017 is ignored, there will be a gap of three lines between the line containing the last entry of date 31 August, 2017 and the line in which date 4 September, 2017 is written in the speed post register. There is also no gap of any line after the date 1 September 2017 is written and the entry of this date. This gap of one line exists in all other entries relating to dates 28 August 2017, 31 August 2017, 4 September 2017, 6 September 2017 and 8 September 2017 contained in the three pages of the speed post registers, scanned copies of which have been reproduced. In fact, a perusal of the speed post register indicates that even for the other dates there is a gap of at least one line after a particular date is mentioned and the entry for that particular date. The inevitable conclusion, therefore, that follows is that the entry relating to date 1 September 2017 was subsequently inserted in between the two dates 31 August 2017 and 4 September 2017.
23. This apart, whereas all the earlier speed post numbers on the relevant page and the other pages from date 23 June 2017 upto 20 September, 2017 begin with ER90...., the speed post number of the envelope relating to date 1 September, 2017 begins with ER92....
23
E/50574/2019
24. The fact that the envelope bearing Speed Post No. ER924187517IN was sent by the Superintendant, Central Goods and Service Tax, Range-II (Balotra), Jodhpur in the Range Office and not from the Division Office from where the order was passed by the Assistant Commissioner is admitted by the Department, as the Assistant Commissioner in his affidavit has made a categorical statement that the said envelope was sent by speed post by Range-II (Balotra), Jodhpur. The Assistant Commissioner has, however, in his affidavit made an attempt to explain this fact by stating:
" The dealing hand has informed that the said Order-in- Original was given by hand to the concerned officer of Balotra Range for service to the assessee. The said order was then sent by Balotra Range through speed post ER924187517IN, which was then informed to the dealing hand, who mentioned the same number in the speed post register of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses."
25. It is not possible to accept this explanation submitted by the Assistant Commissioner in his affidavit.
26. If an order, particularly when it is an order relating to rejection of a refund claim is given by hand by the Division Office to an officer of the Range Office for service upon an assessee, then it has to be in writing and an entry has to be made in the relevant Register/ Peon Book of the Division Office. Further, an entry in the relevant Register/ Peon Book of the Range Office has to be made on receipt of the letter. If the order dated 29 August 2017 was sent by speed post to the Appellant by the Range Office, then it has to be entered in the dispatch register of the Range Office. If information regarding 24 E/50574/2019 dispatch of this order by speed post has been conveyed by the Range Office to the Division Office, then again a letter has to be sent with respective entries in the Register/ Peon Book of the Range Office and the Head Office. The affidavit does not mention about such entries in the Registers/Peon Books. The averment is based only on some oral information said to have been provided by the dealing assistant in the Head Office to the Assistant Commissioner after almost one year and eight months. What needs to be noted is that there is only an entry in the speed post register of the Division Office that mentions the envelope bearing No. ER924187517IN was sent by speed post to the Appellant on 1 September 2017. There is no mention in this entry that the entry has been made on the basis of any information supplied by the Range Office. A perusal of the entry clearly indicates that the envelope was dispatched by the Division Office to the Appellant on 1 September 2017 by speed post bearing no. ER924187517IN.
27. The further explanation in the affidavit of the Assistant Commissioner that it is a common practice to send the posts through Range Office to minimise the postal expenses, is also not acceptable. Both the Division Office and the Range Office are situated in the same city and, therefore, postal expenses could not have been minimised. In fact an officer would also have to carry it from the Division Office to the Range Office and only thereafter, send it by speed post. This practice is also belied from the fact that the show cause notice that was sent to the Appellant was dispatched from the Division Office 25 E/50574/2019 and even the order subsequently sent by speed post to the Appellant on 6 August 2018 was dispatched from the Division Office. This apart, the alleged said practice is not supported by any documentary evidence. In fact, not a single instance has been pointed out when an order passed from the Division Office was sent by speed post by the Range Office.
28. The affidavit of the Assistant Commissioner, as it transpires, is based merely on the oral statement made by the 'dealing assistant' of the Division Office after a period of one year and eight months that the envelope was given by hand to an officer of the Balotra Range for service upon the Appellant.
29. Shri Mohan Das, Superintendant in Division-C, Jodhpur has made an attempt to justify the sending of the letter from the Range Office by stating that the stickers were not available in the post office from where the Division Office sends the letters and, therefore, it was given by hand to an officer of Balotra Range office for service upon the Appellant. This explanation cannot be accepted and in fact was not even an explanation offered by the Assistant Commissioner in his affidavit. In fact this explanation controverts the statement made by the Assistant Commissioner that the envelope was given to an officer of the Range Office for delivery upon the Appellant to minimise expenditure.
30. It is also important to notice that till such time the Appellant had not pointed out the discrepancies in the Speed Post Register, the stand of the Department was that the order was dispatched from the Division Office on 1 September 2017 26 E/50574/2019 because when the Commissioner (Appeals) sought a query from the Adjudicating Authority regarding actual date of delivery of the order, the Adjudicating Authority by letter dated 20 November 2018 informed that the order was sent by Speed Post No. ER924187517IN on 1 September 2017 and the same had not returned back as per their office record. This fact has also been noted by the Commissioner (Appeals) in the impugned order.
31. The matter can be examined from another angle and this will clinch the issue in favour of the Appellant. The Appellant had specifically stated in the memo of appeal that the envelope bearing no. ER924187517IN actually contained a letter dated 1 September, 2017 bearing no. 1740 that was sent by the Superintendant, Central Goods and Service Tax, Range- II (Balotra), Jodhpur in the Range Office to the Appellant in connection with an entirely different matter and that the envelope was not sent by the Assistant Commissioner, Central Goods and Service Tax, Division-B, Jodhpur, in the Range Office who had passed the order. This fact has also been mentioned in the order dated 11 April, 2019 passed by the Tribunal. In fact, in the affidavit filed by the two advocates after inspection of the records, a statement was made that no evidence of service of the order dated 29 August 2017 was produced nor any evidence for service of Speed Post No. ER924187517IN was produced.
32. Learned Authorised Representative of the Department has not controverted this fact nor any register has 27 E/50574/2019 been placed to demonstrate when and how the said letter dated 1 September, 2017 was sent to the Appellant. The affidavit filed by the Assistant Commissioner is also silent on this issue All that the learned Authorised Representative of the Department or the Assistant Commissioner had to do was mention about the records of the Range Office regarding service of the said letter dated 1 September 2017, which the Appellant had categorically stated was sent by the Range Office in an envelope bearing No. ER924187517IN. Sufficient opportunity was given to the Department to explain this issue. If the Contention of the Appellant was not correct, the Department would have placed evidence to show how this letter dated 1 September 2017 was served upon the Appellant. In the absence of any denial of the specific statement made by the Appellant and in the absence of any documentary proof to substantiate how the letter dated 1 September, 2017 bearing no. C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 was actually served upon the Appellant, there is no reason not to accept the version of the Appellant that it was this letter dated 1 September, 2017 that was actually contained in the envelope bearing no. ER924187517IN, that was sent to the Appellant, which envelope was received by the Appellant on 12 September, 2017.
33. The assertion in the affidavit of the Assistant Commissioner that the envelope with speed post bearing no. ER924187517IN was actually dispatched from the Range Office to the Appellant only supports the case of the Appellant since it 28 E/50574/2019 is the case of the Appellant that the envelope was dispatched from the Range Office and contained a letter dated 1 September 2017 addressed by the Superintendent, Central Goods and Service Tax, Range (Balotra), Jodhpur in connection with an issue that a licence granted by the Government to a company to exploit a natural resource is taxable and hence liable for Service Tax.
34. The aforesaid discussion leads to a conclusion that the order dated 29 August 2017 was not contained in the envelope bearing speed post no. ER924187517IN and what was contained in the said envelope was a letter dated 1 September 2017 sent by the Superintendent in the Range Office to the Appellant.
35. This finding also supports the finding earlier recorded that manipulation was done in the Speed Post Register of the Division Office at page 80 by inserting the date 1 September 2017 after 31 August 2017, and before 4 September 2017 to make out a case that the order dated 29 August 2017 had been dispatched by speed post to the Appellant on 1 September 2017 whereas it was a letter dated 1 September 2017 that was dispatched to the Appellant by Speed Post from the Range Office.
36. At this stage, it will also be appropriate to refer to the provisions of the Act relating to service of orders. Section 37C (1) of the Act provides that an order shall be served by tendering the order or by sending it by registered post with acknowledgment due or by speed post with proof of delivery or 29 E/50574/2019 by courier to the person for whom it is intended. Sub-section (2) provides that every order shall be deemed to have been served on the date on which the order is tendered or delivered by post or courier. The Department has not maintained proof of delivery of the orders as all that was stated by the Office to the Commissioner (Appeals) is that the envelope sent by speed post did not return back. It is seen that it is only after the filing of the appeal before the Commissioner (Appeals), that a confirmation was sought from the post office regarding delivery of the envelope bearing no. ER924187517IN.
37. It is also pertinent to note that the Appellant had contended in the Appeal filed before the Commissioner (Appeals) that the order was served only on 6 August 2017. In such a situation if any subsequent information was sought by the Department from the Post Office, it was necessary for the Commissioner (Appeals) to have apprised the Appellant that the order had been served on 12 September 2017 and given him an opportunity to explain, if the Appeal was to be dismissed on the ground of limitation but no opportunity was provided to the Appellant and an order was straight away passed dismissing the Appeal as being time barred.
38. Thus, for all the reasons stated above, the contention of the Appellant that the order dated 29 August 2017 was for the first time made available to the Appellant on 6 August 2018 has to be accepted. If that be so, then the appeal filed by the Appellant before the Commissioner (Appeals) on 4 September 2018 was within of 60 days time stipulated in 30 E/50574/2019 Section 35 (1) of the Act. The order passed by the Commissioner (Appeals), therefore, dismissing the Appeal as being barred by time cannot be sustained and the appeal has to be heard by the Commissioner (Appeals) on merits.
39. The order dated 1 January 2019 passed by the Commissioner (Appeals) is, accordingly, set aside and the matter is remanded to the Commissioner (Appeals) to decide the appeal filed by the Appellant on merits expeditiously and preferably within a period of three months from the date a copy of this order is served upon him.
40. On the basis of the records, it has been established that manipulation and forgery was committed in the Speed Post Register of the Division Office. Once such a finding has been recorded, it becomes necessary to cause an enquiry to be made to determine as to who were responsible for this act. It is, therefore, considered necessary to bring this fact to the notice of the Chairman of the Central Board of Indirect Taxes and Customs to cause an enquiry. A copy of this order shall, therefore, be sent by the office of the Tribunal to the Chairman of the Central Board of Indirect Taxes and Customs. The two registers and the letter dated 1 September 2017 with the envelope shall be kept in a sealed cover with the Registrar of the Tribunal to be made available as and when required.
(Dictated and pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT ARCHANA 31 E/50574/2019 BIJAY KUMAR:
41. The present appeal is filed against the order dated 01.01.2009 passed by the Commissioner (Appeal). The Commissioner (Appeal) dismissed the appeal filed by the Appellant on the ground of having been filed beyond the period specified in Section 35 F of the Central Excise Act, 1944. It is the contention of the Appellant that the appeal before Commissioner (Appeal) was filed in time as Order-in-Original dated 29.08.2017, which was subject matter of appeal was received by the Appellant on 11 August, 2018 and the appeal, was filed on 04.09.2018 and hence the appeal was filed within the prescribed time as contemplated under Section 35F of the Excise Act. The Commissioner (Appeal), on enquiry, found that the adjudicating authority had forwarded the order to the Appellant by speed post No. ER92418751IN dated 01.09.2017 (should be ER 92418751IN dated 01 September, 2017) as per the procedure prescribed under Section 37C of the Excise Act and same was not returned back as per the adjudicating authority office record. Also, the learned Commissioner (Appeal) confirmed from the Post Office that the speed post bearing no. ER92418751IN (ER92418751IN) dated 01.09.2017, had been delivered to the Appellant on 12.09.2017.
42. While the appeal was being heard on the previous occasion by the Tribunal, an Interim Order No. 23/2019 dated 11.04.2019 was passed which is reproduced as under;
"The Commissioner (Appeals) by order dated 1 January, 2019 dismissed the appeal filed by the appellant against the Order-in-Original dated 29 August, 2017 for the 32 E/50574/2019 reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abnormal delay. The Commissioner (Appeals), therefore, sought a report from the adjudicating authority as to the correct date of actual delivery of the impugned order with documentary proof. The adjudicating authority, as has been noticed by the Commissioner (Appeals) in paragraph 6.1 of the order, informed that the Order-in-Original was issued on 29 August, 2017 and it was sent by Speed Post No. ER92418751IN (should be ER924187517IN) dated 1 September, 2017 to the appellant and the same was not returned back as per their office record. The Commissioner (Appeals) also noted that the Postal Department informed, on a query made by the Commissioner (Appeals) that the aforesaid letter was actually delivered to the appellant on 12 September 2017 by the Branch Post Office, Bandra (Kawas).
2. Shri Alok Aggarwal, learned Counsel of the appellant has placed before us the envelop bearing Speed Post No. ER924187517IN and has stated that the envelop in fact contained a letter dated 1 September, 2017 bearing No. 1740 sent by the Office of Superintendent, Central Goods and Service Tax Range. He has also placed copy of the envelop sent by office of the Assistant Commissioner, Central Goods and Service Tax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the appellant received on 11 August, 2018, though it was earlier received by the appellant by hand on 6 August, 2018.
3. Learned Counsel for the appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal.
4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with 33 E/50574/2019 Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN,ER9033505IN, ER902034718IN and ER 0902034695IN.
5. It is, however, seen that as regard entry of date 1 September, 2017, the name Vedanta Limited in English is written with Speed Post No. ER824187517IN.
6. From the aforesaid, it is contended by the learned Counsel for the appellant that the entry of Vedenta Limited against date 1 September, 2017, has been subsequently inserted. It is suggested that this entry instead of indicating the name of the sender, as in the other entries of 31 August 2017 and 4 September, 2017, mentions the name of the recipient as Vedanta Limited and the Speed Post number begins with ER824, whereas all the other Speed Post numbers in this page contained in entries of 31 August, 2017 and 4 September, 2017 bear Speed Post numbers beginning with ER902.
7. Learned Counsel for the appellant has also placed the affidavit of two Advocates namely Shubham Tyagi and Shri D.K. Nayyar who had undertaken the inspection of speed post register and despatch register on 20 February 2019. They have stated in the affidavit that the entry against date 1 September 2017 appears to have been inserted as not only it bore a speed post number beginning with 824 but Vedenta Limited was written in English, whereas the other entries were written in Hindi and in a different style when compared with the other entries on the said page.
8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act.
9. In this view of the matter, the contents of the despatch register and the speed post register assumes importance.
10. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication 34 E/50574/2019 Cell to file his personal affidavit in response to the affidavit of the two lawyers which is at page No. 502 and 503 of this appeal. The respondent shall also place the original despatch register and the speed post register on 10 May, 2019. The registers shall be brought by a responsible officer of the Department in a sealed cover. It is made clear that no tampering of the record shall be undertaken by the respondent in the register. List on 10 May, 2019 on the top of the board."
43. In compliance of the direction of this Tribunal, the Assistant Commissioner filed his personal affidavit and also submitted original dispatch register and speed post register on the 10 May, 2019 before the bench. In affidavit, the Assistant Commissioner averred as under;
"2. The dealing hand has intimated that the said Order in Original was given by hand to the concerned officer of Balotra range for service to the assessee. The said order was then sent by Balotra range through Speed post ER924187517IN, which was then informed to dealing hand, who mentioned the same number in the Speed post register of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses.
3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the fact that Mrs. Sunita Java is only 10th passed.
4. On examination of the speed post register it can be seen that the numbering of the pages has been corrected by overwriting. The dealing assistant who maintains these registers is not highly educated and therefore overwriting was not intentional.
5. The speed post register is maintained for internal monitoring purpose only."
44. The perusal of the above averments make it clear that the impugned Order-in-Original dated 29 August, 2017 was 35 E/50574/2019 sent through the Range Officer for dispatch to the appellant by speed post and which was done by the Speed post vide ER No. 9214118757IN, Balotra Range. The submission of the Assistant Commissioner on affidavit that the order dated 29.08.2017 was handed over to the concerned Range Officer by hand for sending through Speed post is not very common, but the same has been averred by Deputy Commissioner, it needs to be given a credence. However, in order to dispel any doubt about the exact dispatch of Order-in-Original by speed post from Range office, it is pertinent to examine the speed post register of Range office. Regarding the Dispatch Register nothing is conclusive as to whether the entry at serial no. 1555 does not pertains to the Appellant but to Range Balotra. Accordingly, I am of the view that a fresh inquiry is required to be conducted in order to ascertain the fact, as to whether the Range Officer has dispatch the adjudication order or the other letter dated 1 September, 2017.
45. I, therefore, am of the view that the detailed enquiry is required to be done in regard to the speed post register being maintained by the Range Office Balotra, and also the Receipt register of the appellant which will only disclose the truth regarding the alleged manipulation of records.
(Dictated and pronounced in the open Court) (BIJAY KUMAR) MEMBER (TECHNICAL) Tejo 36 E/50574/2019 As divergent views have been expressed in the two separate orders, it has been become necessary to place the matter before the President for referring the matter to a third Member to resolve the following issue;
I. Whether, for the reason stated in the order of the President, the order dated 1 January 2019 passed by the Commissioner (Appeals) deserves to be set aside and the appeal be allowed with the directions contained in the order as the Appellant had filed the appeal before the Commissioner (Appeals) within the stipulated period and the appeal is required to be heard on merits by the Commissioner (Appeals).
Or Whether a further enquiry is required to be conducted to ascertain whether the Range Officer had dispatched the adjudication order or the letter dated 1 September 2017 by speed post on 1 September 2017, which was delivered to the Appellant on 12 September 2017.
2. The file may, therefore, be place before the President for referring the matter to a third Member.
(BIJAY KUMAR) (JUSTICE DILIP GUPTA)
MEMBER (TECHNICAL) PRESIDENT
ARCHANA
37
E/50574/2019
Date of Hearing: 25.11.2019
Date of Decision: 27.11.2019
Miscellaneous Order No. 50/2019
Per Dr. D M Misra:
Heard both sides.
2. The present matter has been referred to third member by Hon'ble President on account of difference of opinion in the Bench comprising of Hon'ble President and Hon'ble Member (Technical) on the issue whether the appeal filed by the Appellant against the Order passed by the Assistant Commissioner dt. 29.08.2017 was within the time limit prescribed under Section 35(1) of Central Excise Act, 1944 and accordingly the Appeal be remanded to the Commissioner(Appeals) for deciding the case on merit or further enquiry is necessary to ascertain the date of communication of the Order.
3. To appreciate the point of difference, it is necessary to narrate the facts in brief even though elaborated in the order of the Hon'ble President.
4. The Appellant has filed the refund claim on 30th May, 2017 on account of excess oil cess paid during the period June, 2016 to August, 2016 and January, 2017 to March, 2017 amounting to Rs. 19.43 Crores (approx.). The show cause notice was issued to the appellant on 09.08.2017 proposing rejection of the refund claim to which they filed their reply to the said notice. Consequently, the Adjudicating Authority heard 38 E/50574/2019 the Appellant on 21st August, 2017 and issued the order on 29th August, 2017.
5. The appellant had also filed a refund claim earlier on 24th March, 2017 on the same issue for an amount of Rs. 117.00 crores (approx.) and on rejection of the said refund claim by the Asst. Commissioner they filed an appeal before the learned Commissioner (Appeals), who in turn, allowed their appeal vide order dated 08th June, 2018. Also, another refund claim amounting to Rs. 1.70 crore filed subsequently was allowed on 23.07.2018 and it was received on 31.07.2018.
6. Since the second refund claim dated 30 th May 2017, where hearing was completed on 21st August, 2017 but the order was not received, the Appellant approached the Adjudicating Authority on 02nd August, 2018 to ascertain the status. They were informed by the department that the order was already issued on 29th August, 2017. Consequently, the Appellant on 03rd August, 2018 requested the Adjudicating Authority for providing a copy of the order, since the same was not received by them. A copy of the order dated 29.08.2017 was handed over to them on 06th August, 2018 and also attested copy of the order was received by them on 11th August, 2018 through speed post. Consequently they filed the appeal on 04th September, 2018 before the Commissioner (Appeals).
7. The learned Commissioner (Appeals) on finding that the appeal was filed after a delay of approximately 308 days, sought information from the field formation on the actual date of communication of the order to the appellant. On the basis of 39 E/50574/2019 a report dated 20.11.2018 of the Adjudicating Authority and also the communication dated 04.12.2018 received from the postal Department Jodhpur, the learned Commissioner (Appeals) concluded that the order dated 29.08.2017 was delivered/communicated to the appellant on 12.09.2017. Consequently, observing that there is inordinate delay of 308 days from the date of communication of the order in filing the Appeal, hence the Appeal has been filed beyond the time period prescribed under Section 35(1) of CEA, 1944, accordingly rejected the appeal.
8. Before the Tribunal the learned Advocate for the appellant has argued that since the order was communicated to them on 06th August, 2018 for the first time and the appeal was filed on 04th September, 2018, therefore, the rejection of the appeal by the learned Commissioner (Appeals) is bad in law. To ascertain the actual date of communication of the order dated 29.08.2017, an Interim Order was passed by this Tribunal on 11.04.2019 directing the Revenue to file appropriate affidavit to answer the averments made in the affidavit filed by the Lawyers of the Appellants, enclosed with appeal paper book. Consequently, the Assistant Commissioner filed an affidavit on 09th May, 2019 and forwarded speed post register as well as dispatch register maintained during the relevant period at the Division office.
9. The Hon'ble President on perusal of the Registers, analysis of the evidences on record and the affidavit filed by the Assistant Commissioner arrived at the conclusion that the order has been communicated to the appellant only on 06 th August, 40 E/50574/2019 2018 and thus the appeal filed before the learned Commissioner (Appeals) on 04.09.2018 is not beyond the period of limitation prescribed under Section 35(1) of Central Excise Act, 1944; whereas the Hon'ble Member (Technical) was of the opinion that further inquiry in the matter required to be carried out.
10. The learned Advocate, Shri Sunil Gupta advancing the argument on behalf of the Appellant has submitted that on receipt of a favourable Order in the Appeal against the rejection of first refund claim from the office of the Commissioner (Appeal) on 8th June, 2018, and also since their third refund claim for Rs. 1.70 crore was also sanctioned by the Assistant Commissioner on 23rd July, 2018, they approached the Adjudicating Authority to ascertain the status of the second refund claim filed on 30th May, 2017 for Rs. 9.34 crores, where the hearing was completed on 21.08.2017. They came to know that the order on the said refund claim was issued on 29 th August, 2017. A copy of the same was requested on 03.08.2018 to initiate necessary action on the same, which was handed over to them on 06th August 2018 and also attested copy of the same was sent by speed post, received by them on 11th August 2018. It is his contention that they have not received the order prior to 6th August, 2018.
11. Assailing the report of the Asst. Commissioner relating to delivery of the order through speed post on 1 st September, 2017 bearing no. ER924187517IN, relied by the Ld. Commissioner(Appeals) in the impugned Order, it is his contention that no doubt the said speed post was received by them from the Range Office, but the content in the envelop 41 E/50574/2019 was different. It is his contention that the envelope with speed post No. ER924187517IN is of the size 23cm×10cm in which the letter dated 01.09.2017 relating to some other subject addressed to the Appellant by the Range Superintendent was delivered. It is his contention that the Order-in-Original which is of eleven pages legal paper size of cannot fit into the said small size window envelope of 23cm×10cm. This fact is corroborated when the order dated 29.08.2017 was received by them against speed post No. ER956930766IN on 11.08.2018 from the Division Office in an envelope of 27cm×12cm size and the weight is approximately 90 grams with a higher postal charge. Also, he has submitted that the order has not been delivered in accordance with Section 37C of the Central Excise Act, 1944, therefore, the date of communication be considered as 06th August, 2018 hence, the appeal is within time.
12. The learned Authorised Representative for the Revenue has submitted that the relevant Speed post, dispatch register and postal envelopes have been examined by the Tribunal. He has contended that there is no dispute of the fact that the speed post bearing no. ER924187517IN dated 01.09.2017 has been dispatched from the Range Office, Balotra but the content of the said envelope is under dispute. He has submitted that in the affidavit of the Assistant Commissioner, it is mentioned that it is a common practice to send the post through Range Office to minimise the postal expenses; which should be understood to mean that it is a common practice to send office dak and some letters by hand delivery to the assessees through the Range Office to minimise the expenses 42 E/50574/2019 of sending the same by post from the Division office. He has submitted that from the postal charge and size of the envelope with the speed post bearing no. ER924187517IN, it is clear that the adjudication order dated 29.08.2017 could not have been sent in the said envelope as the window envelope cannot contain the Order in legal paper size. It is his contention that, however, there could not be any manipulation and forgery on the part of the staff on the record. He has further submitted to decide the case on merit.
13. I have carefully considered the submission advanced by both the sides and perused the records.
14. The limited issue involved in the present reference for determination is whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or the order was delivered on 06th August, 2018 by hand delivery/11th August, 2018 through speed post, and the time limited prescribed under Section 35(1) of CEA, 1944, has been adhered to or otherwise.
15. The relevant dispatch register and speed post register maintained at the Division office have been placed before the Bench earlier and also today for examination. Besides the envelope bearing the speed post no. ER924187517IN issued on 01.9.2017 and the envelope bearing speed post no. ER956130766IN with its contents received by the Appellant on 11.8.2018 are also presented. The size of the former envelope is of 23cm×10cm and is a window envelope, whereas the second one is of 27cm×12cm size. On examination of these envelopes, it has been fairly accepted by 43 E/50574/2019 all concerned that the first envelope is not fit enough to contain the order dated 29.08.2017, which of eleven pages and legal size paper. Also the postal charges levied for speed post of both letters are different, the second one with higher charge the weight being 90gms, therefore, the order dated 29.08.2017 could not have been dispatched in the envelope containing speed post no. ER9241875719IN, for which minimum speed post charge is levied.
16. Further, I find that the learned Commissioner (Appeals) on the basis of the report of the Adjudicating Authority dated 20.11.2018 arrived at the conclusion that the Order-in-Original dated 29.08.2017 has been sent by speed post no. ER9241875719IN dated 01.09.2017 and thus the procedure prescribed under Section 37C of the Central Excise Act, 1944 has been complied with since the speed post has not been returned by the postal authorities to the Department. Also, from the correspondences independently undertaken by the learned Commissioner (Appeal) with the postal Department it was revealed that the said speed post letter was delivered.
17. I find that the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant.
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18. No doubt delivery through speed post in ordinary course be presumed to have been complied with the provisions of Section 37C of CEA, 1944 ,unless the speed post returned back by the postal authorities as undelivered, however, it is a rebuttable presumption and the addressee could rebut through evidences that the speed post has not been delivered to him. This principle has been laid down by the Hon'ble Madhya Pradesh High Court in the case of Indore Municipal Corporation vs. Commissioner of Central Excise, [2016 (338) ELT 567 (MP)].
19. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.2017 could not have been delivered to them through the speed post ER9241875719IN dated 01.09.2017 and in fact they have not been communicated about the said Order on 12.9.2017 as held by the Ld. Commissioner(Appeals). Therefore, the finding of the learned Commissioner (Appeals) is unsustainable.
20. I find that in their separate orders, Hon'ble President and Hon'ble Technical Member have arrived at the same conclusion that the Order-in-Original is claimed to have been dispatched through Range office. Examination of the speed post register maintained at the division office indicates the speed post no. ER9241875719IN. In the affidavit of the Asst. Commissioner at para 2 it is stated that the order has been sent to Range office for delivery. Considering the categorical affirmation of the Asst. Commissioner in the affidavit that the Order was handed over to the Range for 45 E/50574/2019 further delivery to the Appellant and the speed post no ER9241875719IN mentioned in the division office register on the information of the range, Hon'ble president after analysis of other circumstances arrived at the conclusion that the Order 29.8.2017 was not delivered to the Appellant on 12.9.2017 but on 06.8.2018, Whereas the Hon'ble Member (Technical) observed to initiate further inquiry at the Range Office.
21. In my opinion further verification of the speed post register, if at all maintained in the Range Office, would not yield any positive result in as much as the register in the Range office would also show the same speed post number. Receipt of the said speed post letter not disputed by the appellant. It is only the content of the speed post letter ER9241875719IN which is in dispute. An examination of the envelopes a man of ordinary prudence would definitely reach to the conclusion that the order dated 29.08.2017 could not have been dispatched in the envelope mentioning the speed post No. ER9241875719IN dated 01.09.2017.
22. As far as the role of the officers of the department is concerned in furnishing the report, it is not clear as to what short of verficaion conducted and whether it is ascertained the order dated 29.8.2017 remained to be dispatched at the Range office or at the Division office itself; the affidavit also does not disclose about the lapse relating to delivery of the Order. It only tries to explain the procedure followed and responded to the discrepancy pointed out by the Advocates in their affidavit. Thus, it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant 46 E/50574/2019 is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal.
23. In these circumstances, I agree with the findings and conclusion of the Hon'ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944. Consequently, the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits.
24. This order may be placed before the Division Bench for passing the Final Order.
(Order pronounced in open court on 27.11.2019) (Dr. D M Misra) Member (Judicial) Tejo 47 E/50574/2019 Order In view of the opinion rendered by the Hon'ble Third Member we pass the following order.
2. The order dated 1 January 2019 passed by the Commissioner (Appeals) is set aside as the Appeal was filed by the Appellant within the stipulated period and the matter is remanded to the Commissioner (Appeals) to decide the Appeal filed by the Appellant on merits, expeditiously and preferably within a period of three months from the date a copy of this order is served upon him.
(Dictated and pronounced in the open Court) (BIJAY KUMAR) (JUSTICE DILIP GUPTA) MEMBER (TECHNICAL) PRESIDENT ARCHANA