2014 (3) TMI 660 - AT - Central Excise

Tribunal overturns order, stresses natural justice principles, remands matter for fresh consideration

INDIA POWER SERVICES LTD. Versus COMMISSIONER OF C. EX., BHAVNAGAR

The Tribunal set aside the impugned order due to the appellant's appeal being rejected for untimely filing and lack of a personal hearing, emphasizing the ... Defect in service of order - condonation of delay - Demand of Cenvat credit - Shortage in raw material - Held that:- as far as Central Excise law is concerned, registration is given to the factory and as per law, each premise is required to be registered. Therefore, when Section 37C of Central Excise Act, 1944 provides that order part has to be served by sending it by Registered Post Acknowledgement Due, it has to be sent to the unit which has been registered. If the appellant has more than one unit, there is no provision in the law providing that the order can be served on any of the unit. It is actually strange as to how the order has been served on other address. In fact, Section 37C of Central Excise Act, 1944 itself provides different means of service when the order cannot be served by Registered Post Acknowledgement Due. But, obviously in this case, provisions of Section 37C of Central Excise Act, 1944 have not been followed and there is no evidence to show that effort was made to serve the order in the premises where the offence case was booked - Matter remitted back - Decided in favour of assessee. Issues:1. Timeliness of appeal filing.2. Service of order-in-original to the correct address.3. Compliance with Section 37C of the Central Excise Act, 1944.4. Principles of natural justice regarding personal hearing.Issue 1: Timeliness of Appeal Filing:The appellant's appeal against the confirmation of demand of Cenvat credit and duty, along with penalties, was rejected due to being filed beyond the time limit and the condonation period under Section 35(1) of the Central Excise Act, 1944.Issue 2: Service of Order-in-Original to the Correct Address:The appellant argued that the Order-in-Original was sent to a different unit's address, which was a sister unit, and not to the unit where the offence was registered. The Commissioner (Appeals) noted that the order should have been forwarded to the appellant by the other unit, and the Department fulfilled its obligation to serve the order under Section 37C.Issue 3: Compliance with Section 37C of the Central Excise Act, 1944:The Tribunal emphasized that under Central Excise law, each premise must be registered, and orders must be served to the registered unit. In this case, the order was sent to a different address, raising concerns about compliance with Section 37C. The Department failed to demonstrate efforts to serve the order at the correct premises, highlighting a lack of fulfillment of obligations.Issue 4: Principles of Natural Justice Regarding Personal Hearing:The Tribunal found that the original adjudicating authority did not provide a personal hearing to the appellant, thereby not fulfilling the principles of natural justice. Consequently, the impugned order was set aside, and the matter was remanded for fresh consideration, emphasizing the importance of providing the appellant with an opportunity to present their case and ensuring communication at the correct address for procedural fairness.In conclusion, the Tribunal waived the requirement of pre-deposit, allowed the Stay Petition, and remanded the matter to the original adjudicating authority for reconsideration after rectifying the procedural deficiencies. The decision aimed to uphold the principles of natural justice and ensure proper compliance with legal provisions regarding service and timeliness of appeals.