2005 (8) TMI 245 - AT - Central Excise

Tribunal overturns dismissal, validates appeal in time-barred case under Central Excise Act

The Tribunal allowed the appeal filed by M/s. Hindustan Lever Ltd. against the Order-in-Appeal dated 9-8-2004, overturning the dismissal by the ... Orders, summons, notices etc. - Service of Issues:1. Appeal against Order-in-Appeal dated 9-8-2004 passed by the Commissioner of Central Excise (Appeals), Chennai.2. Classification dispute of various cosmetic products manufactured by M/s. Hindustan Lever Ltd.3. Service of Order-in-Original and appeal timeline under Section 37C of the Central Excise Act, 1944.Analysis:1. The appeal was filed by M/s. Hindustan Lever Ltd. against the Order-in-Appeal dated 9-8-2004 passed by the Commissioner of Central Excise (Appeals), Chennai. The dispute arose regarding the classification of various cosmetic products manufactured by the appellants, including Pond's Face Wash, Vaseline Prickly Heat Lotion, and Perfumed Pomade. The Asstt. Commissioner issued Show Cause Notices for some products, which were later dropped after filing replies and hearings. However, there were issues with the service of orders related to certain products, leading to a time-bar challenge for filing the appeal.2. The main issue revolved around the application of Section 37C of the Central Excise Act, 1944, which deals with the modes of service of decisions or orders. The Commissioner (Appeals) dismissed the appeal as time-barred, citing the failure to comply with the prescribed service methods under Section 37C. The Commissioner's decision was based on the belief that the appellants received the impugned orders in May 2002, and thus, the appeal filed in September 2002 was beyond the period of limitation.3. The Tribunal analyzed the provisions of Section 37C and emphasized that the service of orders must adhere strictly to the prescribed methods, such as personal tendering, registered post with acknowledgment due, or affixture at the designated locations. The Tribunal disagreed with the Commissioner's interpretation and highlighted that the deeming provision of service by delivery by post should align with the registered post requirement. The Tribunal also referenced legal precedents to support the mandatory nature of Section 37C and the need for strict compliance with the specified modes of service.4. Ultimately, the Tribunal held that the appeal filed by the appellants was within the time limit as the service of the impugned orders did not comply with the requirements of Section 37C. The Tribunal directed the Commissioner (Appeals) to decide the appeal on its merits, overturning the dismissal based on the time-bar issue. Additionally, the stay petition filed by the appellants was allowed, considering the prima facie case and the Bank Guarantee furnished. The Tribunal's decision was pronounced on 26-8-2005, providing relief to M/s. Hindustan Lever Ltd. in their classification dispute appeal.