Custom, Excise & Service Tax Tribunal
M/S Smite Syntex Pvt.Ltd vs Cce Surat on 19 December, 2014
In The Customs, Excise & Service Tax Appellate Tribunal West Zonal Bench At Ahmedabad Appeal No.E/10799/2013-SM [Arising out of: OIA No.CCEA-SRT-I/SSP-240/2012-13/U/S M35A(3), dt.7.1.2013, assed by: Commissioner of Central Excise & Customs (Appeals), Surat] M/s Smite Syntex Pvt.Ltd. Appellant Vs CCE Surat Respondent
Represented by:
For Assessee: Shri Rahul Gajera, Adv.
For Revenue: Shri G. Jha, A.R. For approval and signature:
Mr. P.K. Das, Honble Member (Judicial)
1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should 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 Seen the order?
4. Whether order is to be circulated to the Departmental Yes authorities?
CORAM:
MR. P.K. DAS, HONBLE MEMBER (JUDICIAL) Date of Hearing/Decision:19.12.14 Order No. A/12299 / 2014, dt.19.12.2014 Per: P.K. Das
1. Ld.Advocate on behalf of the appellant submits that the appeal was dismissed by the Commissioner (Appeals) as time barred. He submits that the adjudication order dt.29.08.2005 was received by them on 02.01.2012 and the appeal was filed before Commissioner (Appeals) on 14.02.2012. Thus, there was no delay in filing the appeal before the Commissioner (Appeals). He submits that they have not received the adjudication order in so far as they received the recovery letter and thereafter they have obtained a copy of the adjudication order and filed the appeal accordingly. He submits that the Commissioner (Appeals) proceeded on the basis of the panchnama in respect of the service of the adjudication order. It is submitted that Section 37C of Central Excise Act 1944 has stipulated the procedure in respect of the service of the order, notice etc, which was not followed in this case. It is also submitted that on the identical situation, in their sister unit viz. M/s Reynolds Petro Chem Ltd, the Tribunal vide Final Order No.A/10307/2014, dt.28.02.2014, remanded the matter to the Commissioner (Appeals) to decide the appeal.
2. On the other hand, the learned Authorised Representative for the Revenue reiterates the findings of Commissioner (Appeals). He submits that the Revenue has taken proper steps for the service of the adjudication order and in support of that, they have recorded the panchnama, which is valid in the eye of law for service of the adjudication order.
3. After hearing both the sides and on perusal of the records, I find that the main contention of the ld.Advocate is that they have not received the adjudication order. It has came to their knowledge through the recovery notice and thereafter they collected a copy of the adjudication order and filed the appeal in time. The Tribunal in the case of Trans Global Agencies Pvt.Ltd. Vs CCE Daman 2009 (245) ELT 757 (Tri-Ahmd), in the identical situation has held that the Revenue has to follow the procedure stipulated under Section 37C of the Central Excise Act 1944.
4. The Tribunal in the case of M/s Reynolds Petro Chem Ltd (supra), following the decision of the Trans Global Agencies Pvt.Ltd (supra) held as under:-
7. Judgment of the division bench of the Tribunal which is directly on the point is binding on me accordingly in facts and circumstances of this case, I hold that the appellant was not served with OIO No. prior to 29.01.2012 and time limit of filing an appeal as per the provision of Section 35 could be from that date only.
8. The impugned order is set aside, with a direction that first appellate authority should reconsider the issue afresh, after restoring the appeal to its original number and after following the principles of natural justice.
9. Appeal allowed by way of remand.
5. In view of the above discussion and following the decision of the Tribunal in the case of M/s Reynolds Petro Chem Ltd (supra), the impugned order is set aside holding that the adjudication order was not served prior to 02.01.2012 and the limitation for filing the appeal under Section 35 of Central Excise Act 1944 would be on that date only. The Commissioner (Appeals) is directed to decide the issue after following the principles of natural justice. Appeal allowed by way of remand.
(Dictated & Pronounced in Court) (P.K. Das) Member (Judicial) cbb 4