2017 (9) TMI 1783 - AT - Central Excise

Tribunal accepts appeal filing was timely, order communication key. Lack of evidence favors applicant.

ULTRATECH CEMENT LTD. Versus COMMR. OF C. EX. AND S.T., RAIPUR

The Tribunal found no delay in filing the appeal, accepting the applicant's argument that it was within the statutory time limit. The communication of the ... Communication/service of order - Section 37C of the Central Excise Act, 1944 - condonation of delay in filing appeal - applicant submitted that the order-in-appeal dated 14-11-2007 was forwarded by the Department on 11-11-2016 and considering such date as the date of receipt of the order-in-appeal, the present appeal was filed within the stipulated time limit - Held that:- As per provisions of Section 35C ibid, ‘speed post’ is not the prescribed mode of sending of the decision, order, etc. In view of the settled position of law, since the impugned order has not been communicated in the manner prescribed in statute, the same should not be construed as proper communication and in absence of proper substantiation by Revenue regarding the date of receipt of the impugned order as claimed by the applicant, should be considered as the appropriate date for the purpose of computation of the limitation period - thus, the interest of justice demands that 11-11-2016 should be considered as the date of communication of the impugned order and since the appeal was filed before the Tribunal on 7-2-2017, the same is within the stipulated time as prescribed in Section 35B ibid. There is no delay in filing appeal - Registry is directed to accept the appeal papers and assign the appeal number to the appeal filed by the applicant - appeal restored. Issues:1. Delay in filing the appeal before the Tribunal.2. Communication of the impugned order and its impact on the limitation period.3. Proper substantiation by Revenue regarding the date of receipt of the impugned order.4. Applicability of Section 35C of the Central Excise Act, 1944.5. Requirement of filing a COD application.Analysis:Issue 1: Delay in filing the appeal before the TribunalThe applicant filed an appeal against the order dated 14-11-2007 passed by the Commissioner (Appeals) before the Tribunal on 7-2-2017. The Technical Officer issued a defect memo due to the delay of more than 9 years in filing the appeal. The applicant contended that the appeal was filed within the statutory time limit, as they received the order-in-appeal on 11-11-2016, and relied on judgments supporting their argument. The Tribunal examined the case records and found no delay in filing the appeal, directing the Registry to accept the appeal papers and assign an appeal number.Issue 2: Communication of the impugned order and its impact on the limitation periodThe impugned order was communicated to the applicant through speed post, not in the manner prescribed under Section 37C of the Central Excise Act, 1944. The Tribunal referred to established legal principles and judgments, emphasizing that the order should have been sent through registered post with acknowledgment due. Since the order was not communicated as per the statute, the date of communication was considered as 11-11-2016, the date claimed by the applicant. As the appeal was filed on 7-2-2017, it was within the stipulated time limit under Section 35B of the Act.Issue 3: Proper substantiation by Revenue regarding the date of receipt of the impugned orderThe Revenue argued against condonation of the appeal filed beyond 9 years, stating that the applicant was aware of the impugned order before the filing date. However, the Tribunal found that the affidavit of the Vice-President (Finance) was correct and could be considered for deciding the issue. The lack of proper substantiation by the Revenue regarding the date of receipt of the impugned order supported the applicant's claim.Issue 4: Applicability of Section 35C of the Central Excise Act, 1944The Tribunal highlighted the provisions of Section 35C of the Act, emphasizing the prescribed mode of sending orders and notices. It was established that the impugned order was not communicated in the manner required by the statute, leading to the determination of the date of communication as per the applicant's claim.Issue 5: Requirement of filing a COD applicationThe Tribunal concluded that there was no scope for the applicant to file a COD application, as the appeal was filed within the stipulated time limit. The Registry was directed to accept the appeal papers without the need for a COD application, and the appeal was scheduled for hearing in due course.This detailed analysis of the judgment addresses the various issues involved in the case, including the delay in filing the appeal, communication of the impugned order, substantiation by the Revenue, statutory provisions, and the requirement of a COD application.