2017 (5) TMI 1075 - AT - Central Excise

Dismissal of Appeal for Delay in Filing Based on Compliance with Sec 37C

The appeal for condonation of delay in filing was dismissed by the Member (Judicial) based on the finding that the order was sent via Regd Post with ... Communication of the order - Section 37C of CEA, 1944 - Held that: - It is not in dispute that the order was sent by Regd Post with acknowledgment due and it has been delivered/communicated to the appellant on 10.10.2014. Needles to emphasize that the appellants’ factory has been functional at the relevant time and also the order had been delivered by the Postal Authorities on a working day during office hours - the service of the order is in accordance with the Provision of Section 37C of CEA 1944 - appeal dismissed - decided against appellant. Issues: Condonation of delay in filing the appeal before the Forum.Analysis:1. The advocate for the applicant argued that the delay in filing the appeal was due to the Director not being informed about the receipt of the impugned order. The order was received by the watchman of the factory, and the Director only became aware of it when pressured for recovery of dues. Affidavits were submitted to support the claim that the Director located the order on 10.10.2015 and filed the appeal on 12.10.2015. Reference was made to the Supreme Court's decision in Saral Wire Craft Pvt Ltd Vs CCE&ST and the Tribunal's decision in Vindhyachal Synthetics Pvt Ltd vs CCE, Bhopal to argue that delivery by the watchman does not constitute proper communication of the order.2. The Revenue's representative contended that the order was dispatched by the Office of the Commissioner(Appeals) through Regd. Post with acknowledgment due and was received by the appellant on 10.10.2014. A copy of the acknowledgment signed by the appellant's representative was provided as evidence. It was argued that since the order was sent in compliance with Sec.37C of CEA, 1944, the delivery to the watchman should be considered as due communication of the order. The Revenue distinguished the cases cited by the applicant and emphasized that the factory was operational, the Regd. Post was delivered during office hours on a working day, aligning with Sec.37C requirements.3. The Member (Judicial) found merit in the Revenue's argument, emphasizing that the order was sent via Regd Post with acknowledgment due and was received by the appellant on a working day during office hours. The functional status of the appellant's factory further supported the conclusion that the service of the order complied with Sec 37C of CEA 1944. The cited judgments were deemed inapplicable to the current case due to differing circumstances. Referring to the Supreme Court's decision in Chief Post Master General vs Living Media India Ltd, it was highlighted that delay can only be condoned with sufficient reasons. Consequently, the Misc (COD) applications were dismissed, leading to the dismissal of the appeals.