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of <h1>Appeal dismissed as time-barred under deemed service provisions, no prejudice from lack of notice established</h1> CESTAT Chennai dismissed the appeal, upholding the Commissioner (Appeals) decision to reject the appeal without notice. The tribunal held that no ... Violation of principles of natural justice - appeal rejected without issuing a notice - appeal was time barred or not. Whether the Commissioner (Appeals) was correct in rejecting their appeal without issuing a notice to them as per principles of natural justice? - HELD THAT:- The principles of natural justice are not a straight-jacket formula. It has been held by courts that whether in fact, prejudice has been caused to the person by not doing a certain action, has to be considered on the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice one must establish that prejudice has been caused by non-observance thereof. This being a case where the burden of proof has been shifted by the department to the appellant by issue of letter dated 27.9.2021, it was for the Appellant themselves to demonstrate that the Appeal was filed within the time limit prescribed by the statute, no prejudice has been caused to them by not giving them a notice regarding time-bar - the Commissioner (Appeals) decision cannot be faulted on this score. Whether the appeals filed by them were time-barred? - HELD THAT:- The issue raised by the appellant involves a question of fact and law. Although the issue of fact was examined by the learned Commissioner (Appeals) before coming to a conclusion it is found that the Tribunal being the last fact-finding authority, it is essential that the Appellants pleading should be examined for its correctness. It is seen that a document is deemed to be served by post by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is seen that a document is deemed to be served by post by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. The Appellants pleadings fails both on facts and law - impugned order merits to be upheld - Appeal dismissed. Issues Involved:1. Whether the Commissioner (Appeals) was correct in rejecting the appeal without issuing a notice to the appellant as per principles of natural justice.2. Whether the appeals filed by the appellant were time-barred.Summary:Issue 1: Whether the Commissioner (Appeals) was correct in rejecting the appeal without issuing a notice to the appellant as per principles of natural justice.The appellant argued that the Commissioner (Appeals) did not raise any objection on the limitation aspect at the time of filing the appeals and did not issue a notice regarding the time-bar, which amounts to a violation of natural justice. However, it was noted that the appellant was aware of the statutory delay in filing the appeal and should have been prepared to defend the matter. The principle that 'he who asserts should prove' was emphasized, and it was concluded that no prejudice was caused to the appellant by not issuing a notice regarding the time-bar. The Commissioner (Appeals) decision was not faulted on this score.Issue 2: Whether the appeals filed by the appellant were time-barred.The Tribunal examined the facts and found that the appellant had not been truthful about the non-receipt of orders. The Department provided sufficient evidence showing dispatch of the orders, including postal acknowledgements for some documents. The appellant had not shown due diligence in following up on the matter with the Department, and the burden of proof had shifted to the appellant, who failed to discharge it. The Tribunal referred to Section 37C of the Central Excise Act 1944 and Section 27 of The General Clauses Act, 1897, concluding that the service of documents by the Department was proper and effective. The appellant's inaction barred them from claiming a remedy almost a decade after the receipt of the earliest Order in Original. The Tribunal upheld the impugned order, finding the appellant's pleadings to fail both on facts and law. The appeals were dismissed.
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