2009 (10) TMI 369

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....ate 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. 2. Heard both sides. The ld. counsel for the appellant submits that, a copy of the Order-in-Original was received by them only on 24-8-05 arid that, the appeal filed with the Commissioner (Appeals) was within th....

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....knowledgement due, to the person for whom it is intended or his authorized agent, if any. In case of any situation where under, the service of decision, order, summons cannot be done In the above manner. Section 37C provides for alternative procedure, which, however, is not relevant to this case. The question is whether, the Order-in-Original passed by the Dy. Commissioner in the present case, was sewed on the appellant and, if so, when? According to the appellant, it was served on them only on 24-8-05. According to the department, it was served on the appellant on 11-2-2005, as evidenced by the postal acknowledgement card. The postal acknowledgement card indicates that the postal article containing the Order-in-Original was served on a per....

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....t of the postal acknowledgement card, which indicates that a copy of the Order-in-Original had been served on an agent of the company. It, of course, is a rebuttable presumption. In this case, it has not been successfully rebutted. In the scenario, it has to be held that a copy of the Order- in-Original was received by the appellant-company on 11-2-05. The appeal filed by them on 30-8-05 was hopelessly delayed. It was delayed even beyond the condonable period of delay prescribed under Section 35 of the Central Excise Act. The lower appellate authority had no power to condone such delay. His order has only to be sustained. It is ordered accordingly. 5. The case law cited by the ld. counsel cannot be applied to the facts of this case. Cert....