Timely Appeal Filing Confirmed: Tribunal Sets Aside Previous Order, Case Remanded for Decision

The Tribunal found that the order dated 29.08.2017 was actually delivered to the appellant on 06.08.2018, not on 12.09.2017 as presumed. As a result, the appeal filed on 04.09.2018 was within the prescribed time limit under Section 35(1) of the Central Excise Act, 1944. The previous order was set aside, and the case was remanded for a decision on merits by the learned Commissioner (Appeals). The final order was issued on 27.11.2019, confirming the timely filing of the appeal and directing further proceedings.

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Issues Involved:
1. Whether the appeal filed by the Appellant against the Order dated 29.08.2017 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944.
2. Whether the order dated 29.08.2017 was delivered to the appellant on 12.09.2017 or on 06.08.2018/11.08.2018.

Issue-wise Detailed Analysis:

1. Time Limit for Filing Appeal:
The primary issue was whether the appeal filed by the Appellant against the Order dated 29.08.2017 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944. The learned Commissioner (Appeals) found that the appeal was filed after a delay of approximately 308 days, based on the assumption that the order was communicated to the appellant on 12.09.2017. Consequently, the appeal was rejected as it was filed beyond the prescribed period.

2. Date of Communication of the Order:
The core of the dispute revolved around the actual date of communication of the order dated 29.08.2017. The appellant contended that they received the order only on 06.08.2018 by hand delivery and on 11.08.2018 through speed post. The Tribunal had directed the Revenue to file an affidavit to ascertain the date of communication. The Assistant Commissioner filed an affidavit and provided relevant registers and postal records.

Upon examining the dispatch register, speed post register, and the envelopes, it was found that the envelope bearing speed post no. ER924187517IN dated 01.09.2017 was too small to contain the order, which was of eleven pages and legal size. This was corroborated by the fact that the second envelope, which was larger and had higher postal charges, contained the order and was received by the appellant on 11.08.2018.

The learned Commissioner (Appeals) had concluded that the order was delivered on 12.09.2017 based on the report of the Adjudicating Authority and postal department communication. However, the appellant successfully rebutted this presumption by demonstrating that the envelope with speed post no. ER924187517IN contained a different letter and not the adjudication order. The Tribunal agreed with this rebuttal, referencing the principle laid down by the Hon'ble Madhya Pradesh High Court in Indore Municipal Corporation vs. Commissioner of Central Excise [2016 (338) ELT 567 (MP)], which allows for rebutting the presumption of delivery through speed post.

Conclusion:
The Tribunal concluded that the order dated 29.08.2017 was not delivered to the appellant on 12.09.2017 but on 06.08.2018. Therefore, the appeal filed on 04.09.2018 was within the time limit prescribed under Section 35(1) of the Central Excise Act, 1944. The impugned order was set aside, and the matter was remanded to the learned Commissioner (Appeals) to decide the issue on merits.

Final Order:
The order was pronounced in open court on 27.11.2019, agreeing with the findings and conclusions that the appeal was timely filed and remanding the case for a decision on merits.

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