2015 (3) TMI 334 - AT - Central Excise

Tribunal excuses appeal delay due to non-receipt of order, finds no mala fide intent

Mint Port Pvt. Ltd. Versus Commissioner of Central Excise And Service Tax, Meerut-II

The Tribunal accepted the appellant's claim of only learning about the impugned order upon the Revenue's recovery request due to non-receipt. It found ... Condonation of delay - Receipt of order by Manager - Assessee contends that impugned order was also sent to the Manager of the appellant company and he is not disputing the receipt or non-receipt of the same and as such is presumed to have been received the same. If that be so, there is reasonable presumption that appellant must have received the impugned order. As such he prays that inasmuch as there is huge delay, the appeal could not be maintained. - Held that:- High Court in the case of Amidev Agro Care Pvt. Ltd. vs. Union of India reported in [2012 (6) TMI 304 - BOMBAY HIGH COURT] has held that sending of order by speed post is not sufficient compliance to the provisions of Section 33 C(1)(a) of CEA, 1944 and the order is required to be sent by registered A.D. post. Admittedly, in the present case, the order was sent by Revenue by speed post and there is no conclusive evidence on record to show that the same stands received by the assessee. In such arena of dispute on receipt of impugned order, the ratio laid down by the Hon'ble Bombay High Court would apply. As such, we accept the appellant's contention that he came to know about passing of the order only when the Revenue approached them for recovery under the cover of their letter dated 28.3.2012. Thereafter, the appellant immediately procured the order and filed the appeal within time. - there is no mala fide on the part of the assessee, not to file appeal within time - Delay condoned. Issues: Delay in filing appeal, receipt of impugned order, compliance with Section 37C of the Central Excise Act, 1944.Delay in Filing Appeal:The appellant sought condonation of a 387-day delay in filing the appeal, claiming they only received the impugned order when the Revenue approached them for recovery. The Revenue contended that the order was sent by speed post, not registered A.D. post as required by Section 37C(1), and that the order was also sent to the Manager of the appellant company. The appellant argued that non-receipt by the Manager does not constitute receipt by the company, especially since the Manager was not required to file an appeal due to penalties being set aside. The Tribunal considered the submissions and referred to a Bombay High Court case, holding that sending orders by speed post does not meet the requirements of the Act. As there was no conclusive evidence of the order being received, the Tribunal accepted the appellant's claim that they only learned of the order upon the Revenue's recovery request and thus condoned the delay.Receipt of Impugned Order:The Revenue provided a despatch register showing the order was sent by speed post, not registered A.D. post as mandated by law. Despite the Manager of the appellant company not disputing receipt, the Tribunal agreed with the appellant that the Manager's receipt did not equate to the company's receipt. The Tribunal emphasized the lack of evidence proving the Manager's receipt and noted that the Manager's lack of appeal filing requirement made the date of his receipt irrelevant.Compliance with Section 37C of the Central Excise Act, 1944:The Revenue acknowledged the order was not sent by registered A.D. post as required by Section 37C(1) but argued that since the order was sent to the Manager and not disputed, it should be presumed received by the company. The appellant's advocate countered that the Manager's receipt did not fulfill the statutory requirement, especially given the Manager's lack of appeal filing obligation. The Tribunal cited a Bombay High Court ruling to support the appellant's position that sending orders by speed post does not meet legal standards, ultimately leading to the condonation of the appeal filing delay.In conclusion, the Tribunal found no mala fide intent on the appellant's part for the delay and thus decided to condone the delay, disposing of the COD application.