Custom, Excise & Service Tax Tribunal
M/S. Pepsico India Holdings Pvt. Ltd vs Cce, Allahabad on 15 September, 2014
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.II, R.K. PURAM, NEW DELHI-110066.
BENCH-DB
Date of Hearing: 15.09.2014
E/Stay/61181/2013
E/60260/2013-EX[DB]
[Arising out of Order-in-Appeal No. 17/CE/ALLD/2013 dated 24.07.2008 passed by the Commissioner (Appeals), Central Excise, Allahabad]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. R.K. Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
M/s. Pepsico India Holdings Pvt. Ltd. Appellant
Vs.
CCE, Allahabad Respondent
Present for the Appellant : Shri B.L. Narsimhan, Advocate Present for the Respondent : Shri M.S. Negi, DR FINAL ORDER NO. 53824/2014 PER: R.K. Singh The appellants have filed this stay petition alongwith appeal against Order-in-Appeal No. 17/CE/ALLD/2013 dated 24.07.2008. Vide the said Order-in-Appeal the appellants appeal was rejected by the Commissioner (Appeals) on the ground that there was a delay of 1024 days in filing the appeal. Thus the appeal was rejected as time barred.
2. The appellants have contended that:
(i) The Order-in-Original in this case is dated 07.05.2009 but it was never received by them because it was sent on the address of the appellants factory at Sathariya where operations had been suspended since 2007 and this fact had been intimated to the department.
(ii) The Commissioner (Appeals) presumed the receipt of the order by them merely on the basis that the same was dispatched on 08.05.2009 by registered post.
(iii) It was only on 27.02.2012 that the appellants received the said Order-in-Original dated 07.05.2009 and filed appeal before the Commissioner (Appeals) within the stipulated time computed from 27.02.2012 which the Commissioner held as time barred.
3. The revenue has contended that the order was sent by the registered post on 08.05.2009 and as per the General Clauses Act, 1897, it is presumed to have been served within a reasonable time thereafter. The revenue conceded that they do not have the acknowledgement due to show the date of receipt the Order-in-Original by the appellants.
4. We find that the only issue involved in the case is whether the appeal before the Commissioner (Appeals) was filed within the period stipulated as per the Section 35 of the Central Excise Act 1944. We therefore with the consent of both parties proceed to decide the appeal waiving the pre-deposit.
5. We find that the issue is covered in favour of the appellants vide order of CESTAT in case of Bharat Sanchar Nigam Ltd. Vs. CCE, Jaipur-I 2014 (33) STR 332 (Tri.-Del.) wherein paras 4, 5 & 6 CESTAT observed as under:
4. The appellate authority observed that the adjudication order dated 25.2.2008 was dispatched to the appellant through registered post on 20.05.2008 that the adjudication order is deemed to have been served on the assessee. A judgment of the Madras High Court reported in 2000 (126) ELT 65 (Mad.) was referred to for the said purpose.
5. Section 37C(2) of the Central Excise Act, 1944 clearly enacts that every decision or order passed or any summons or notice under this Act or the rules made therein, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed n the manner provided in sub-sections (1) and (2). Section 37 comprises two limbs; clause(a) is alone relevant for our purposes and this provision enjoins that any decision or order shall be served by tendering such decision or order or notice or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent.
6. On an interactive application of the provisions of sub-sections (1) and (2) of Section 37C the conclusion is compelling that where Revenue seeks to serve an adjudication order by sending it through by registered post, proof of service/proof of delivery of the communication on the assessee is an integral component of facts relevant to an inference as to the date of communication. The ld. Commissioner (Appeals) has inferred from the fact of the adjudication order having been sent by registered post that there was a delivery of the registered post of the assessee. This inference suffers from a factual vacuum viz. Proof of delivery.
96. On the aforesaid analysis the appellate order rejecting the appeal on the ground of bar of limitation is unsustainable.
4. Thus, we find the issue is no longer res-integra and settled in favour of the appellants. Therefore, we set aside the impugned order and remand the matter to the Commissioner (Appeals) for consideration of the appellants appeal on merit after giving them an opportunity of being heard.
(Justice G. Raghuram) President (R.K. SINGH) TECHNICAL MEMBER Neha 3