2016 (12) TMI 910 - AT - Central Excise

Appeal allowed after Tribunal finds Commissioner's dismissal was improper service, remands for fresh decision.

The Tribunal overturned the Commissioner's dismissal of an appeal as time-barred, emphasizing that serving the order on the company did not constitute ... Period of limitation - Held that: - when the appellant is an independent person(notice) in case, how the order served on some other person can be treated as service of order to the appellant - We fail to understand when the appellant is an independent person(notice) in case, how the order served on some other person can be treated as service of order to the appellant - appeal allowed by way of remand. Issues: Appeal dismissal on the grounds of being time-barredThe judgment revolves around the dismissal of an appeal by the Commissioner (Appeals) on the grounds of being time-barred. The appellant argued that the appeal was filed within the stipulated time after receiving the order, which was served to the company, not to him directly. The appellant contended that he, being an employee, should be exempt from the penalty imposed. The Revenue, represented by the Superintendent, supported the dismissal citing previous tribunal decisions. The Tribunal, comprising Mr. Ramesh Nair and Mr. C.J. Mathew, focused on whether the order's time bar was justifiable, rather than delving into the case's merits.Analysis:The appellant, Shri Purushottam Lohia, self-represented and argued that the appeal was timely filed after obtaining a copy of the order served to the company. He emphasized that the excise duty, interest, and penalty were paid by the company, and the redemption fine was significantly reduced. The appellant, being an employee without personal gain, sought exoneration from the penalty. On the other hand, Shri Sanjay Hasija, the Superintendent representing the Revenue, reiterated the impugned order's findings and relied on a previous tribunal decision for support.The Tribunal, after considering both parties' submissions, highlighted the Commissioner's reasoning for dismissing the appeal as time-barred. The Commissioner noted the delay in filing the appeal, stating that the appellant, despite being aware of the order's outcome, waited over five months to obtain a copy. The Commissioner emphasized the appellant's lack of vigilance and importance given to the matter. Referring to precedents, the Commissioner concluded that the delay was inordinate and not condonable, thus justifying the dismissal of the appeal.However, the Tribunal found a serious flaw in the Commissioner's decision. They questioned how an order served on the company could be deemed as served to the appellant, an independent person in this case. The Tribunal deemed the Commissioner's order as lacking proper consideration and set it aside. They directed the Commissioner to pass a reasoned order on the case's merits, allowing the appeal by remanding it back to the Commissioner (Appeals) for a fresh decision. The judgment was pronounced on 16/11/2016.