Custom, Excise & Service Tax Tribunal
M/S Ram Charan Steels Limited vs Cce, Kanpur on 15 April, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. III DATE OF HEARING : 15/04/2013. DATE OF DECISION : 15/04/2013. Excise COD Application No. 442-443 of 2010 with Misc. Application No. 1924-1925 of 2012 and Stay Application No. 3152-3153 of 2010 in Appeal No. 3365-3366 of 2010 [Arising out of the Order-in-Original No. 20/Commissioner/MP/ 2006 dated 31/07/2006 passed by The Commissioner of Central Excise (Appeals), Kanpur.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, 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? 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 Ram Charan Steels Limited ] Appellant Shri Sanjay Jaiswal, Director ] Versus CCE, Kanpur Respondent
Appearance Shri Pankaj Bhatia, Advocate for the appellant.
Shri R.K. Mathur, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri Rakesh Kumar, Member (Technical) Final Order No. 56091-56092/2013 Dated : 15/04/2013 Per. Archana Wadhwa :-
After hearing both the sides duly represented by Shri Pankaj Bhatia, Advocate for the appellant and Shri R.K. Mathur, DR for the department, we find that the delay in filing the present appeal is about four years. It is seen that impugned order-in-original was passed by the Commissioner on 31/07/2006. As per the Revenue, the same was affixed at the factory gate of the appellant, in as much as their factory as also their office was closed.
2. The appellants case is that the fact of closure of the factory was intimated to the Revenue right in 2003 itself and the Revenue was subsequently doing all the correspondence at their new address i.e. 29/43, Ghumni Bazar, Kanpur. Vide their letter dated 24/01/03 addressed to Commissioner, the change of new address was also placed on record with a request that in future all the correspondences may be made at that address. It is seen that subsequently, the Revenue was making communications to the above address of the appellant. However, instead of serving the impugned order at the same address, at which other communications were being made, Revenue chose to affix the same at the factory gate of the appellant, for the reasons best known to them.
3. It is only subsequently when the Revenue approached for recovery of the dues in the year 2009 that the appellant came to know about passing of the impugned order. In fact, we find that the said recovery letter dated 21/12/09 is also addressed by the Revenue to the appellants Ghumni Bazar address. The Revenue in response to the said letter, vide their letter dated 29/2/10, provided a copy of the impugned order to the appellant, and though they wrote in the said letter that the order was sent at the address of the Ghumni Bazar, which was also closed few years back. Learned advocate strongly objects to the above observation in the said letter and submits that Ghumni Bazar office was open as is clear from the letter dated 21/12/09, vide which the Revenue has initiated recovery proceedings.
4. We fully agree with the learned advocate. In fact as early as in 2003 and as late as December 2009, all the communications stand made by the Revenue at the appellants Ghumni Bazar address but for some strange reasons, Revenue has not posted the impugned order at their Ghumni Bazar address, as is clear from the order itself. Similarly, the Superintendents observation in the subsequent letter dated 19/2/10, vide which the order was again served to the appellant, that their Ghumni Bazar office was closed, cannot be held to be proper for the reasons that in December 2009 itself the Revenue addressed a letter to the appellant at their Ghumni Bazar office, which was received by them and immediately replied too. Revenue has also not produced any evidence to show that their Ghumni Bazar office was shut down.
5. In as much as the effective delivery of the impugned order to the appellant is only under the cover of letter dated 19/2/10 and the appeal having been filed on 14/5/10, that is within a period of three months from the date of receipt of the order, we are of the view that there is no delay and even if there is considered to be some delay, the same is condonable. We accordingly allow the COD applications.
6. At this stage, we find that the appellant had also not received the show cause notice and, as such, no replies stand filed by them. Further no hearing opportunity stands availed by them. Accordingly, we are of the view that impugned order is liable to be set aside on this ground alone. We order accordingly and remand the matter to Commissioner for fresh adjudication. Needless to say that the appellant would place their complete address on record and the Adjudicating Authority would observe all the principles of natural justice.
7. COD, Stay and miscellaneous applications as also appeals get disposed in above manner.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (Rakesh Kumar) Member (Technical) PK ??
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