2009 (10) TMI 369 - AT - Central Excise

Tribunal affirms dismissal of appeal for untimely filing & valid service. Case law & statutes analyzed.

The Tribunal upheld the dismissal of the appeal by the Commissioner (Appeals) due to the untimeliness of filing and the valid service of the ... Limitation- the original authority had disallowed Cenvat credit amounting to Rs.2,81,491/- to the assessee (present appellant) and had imposed equal amount of penalty on them. The said authority had also imposed a separate penalty of Rs.5,000 /- on the assessee under Rule 27 of Cenvat Credit Rules, 2002. The order of adjudication was passed on 8-2-2005, against with the party filed all appeal with the Commissioner (Appeals) on 30-8-2005. That appeal was obviously beyond the period of limitation prescribed under Section 35 of the Central Excise Act and even beyond the condonable period of delay of 30 days prescribed under the said provision. The Commissioner (Appeals), on this basis, dismissed the appeal as time-barred Hence, the present appeal. Held that- the Revenue, fulfilled the requirement of Section 37C(2) of Central Excise Act, and that the order should be deemed to have been sewed on the person intended. On the basis of the case law cited by the DR. and the specific provisions of Section 37C of the Central Excise Act, the only conclusion which can be reached in this case is that, a copy of the adjudication order was served by the department on the appellant on 11-2-05 in terms of Section 37C. In the result, the order of Commissioner (Appeals) is sustained and this appeal is dismissed. Issues:1. Timeliness of filing the appeal with the Commissioner (Appeals) against the order of adjudication disallowing Cenvat credit and imposing penalties.2. Service of the Order-in-Original on the appellant and the legal implications of the same.Issue 1: Timeliness of Appeal FilingThe original authority disallowed Cenvat credit and imposed penalties on the appellant, who then filed an appeal with the Commissioner (Appeals) beyond the period of limitation prescribed under Section 35 of the Central Excise Act. The Commissioner (Appeals) dismissed the appeal as time-barred. The appellant argued that they received the Order-in-Original after the date claimed by the department. The appellant relied on the judgment in R.K. Agarwal v. CESTAT, New Delhi and Matigara Rolling Mills (P) Ltd. v. Commissioner of C. Ex., Siliguri. The department cited the decision in Mohammed Saleem v. CC, Calicut. The Tribunal found that the appeal was hopelessly delayed, even beyond the condonable period, and upheld the dismissal by the Commissioner (Appeals).Issue 2: Service of Order-in-OriginalThe appellant claimed that the Order-in-Original was received on 24-8-05, while the department asserted it was served on 11-2-05, supported by a postal acknowledgement card. The appellant argued that the person who received the order was not authorized. The Tribunal analyzed Section 37C of the Central Excise Act, which outlines the service of orders to affected persons. The postal acknowledgement card indicated service to a person representing the company, although the appellant disputed the person's authorization. The Tribunal noted a presumption under Section 114(e) of the Evidence Act regarding regular and lawful proceedings. As the presumption was not rebutted, it was held that the Order-in-Original was received by the appellant on 11-2-05. Citing case law and specific provisions of Section 37C, the Tribunal concluded that the order was validly served, leading to the dismissal of the appeal.In conclusion, the Tribunal upheld the dismissal of the appeal by the Commissioner (Appeals) due to the untimeliness of filing and the valid service of the Order-in-Original on the appellant. The legal analysis considered relevant case law and statutory provisions, ultimately resulting in the dismissal of the appeal.