TaxTMI 
TaxTMI 
2011 (6) TMI 620
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....the copy thereof was served upon them on 20-9-2010 and they filed the appeal on 8-10-2010. 4. When the matter came up for hearing on 14-3-2011, there was no sufficient material in support of the said contention, and therefore at the request of the learned Advocate for the appellants further time was granted. The appellants filed an affidavit of one Shri Babu J. Baby, the Chief Installation Manager of the appellant company being affidavit dated 21-4-2011 which states that though the copy of the order dated 8-3-2010 was served upon one of the employees of the contractor of the appellants on 17-3-2010, he never handed over the said copy to the appellants. It was pursuant to the enquiry with the department that the appellants learnt abo....
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....lants have very good case on merits and the department had failed to establish that the appellants had collected revised price and in that regard sought to rely upon the decision in Bharat Petroleum Corporation Ltd. v. CCE, Raipur reported in 2002 (144) E.L.T. 672 along with Commissioner v. Bharat Petroleum Corporation Ltd. reported in 2003 (156) E.L.T. A326 (S.C.), BPCL v. Commissioner reported in 2003 (158) E.L.T. 833, BPCL v. CCE, Noida reported in 2007 (207) E.L.T. 121, Sr. Terminal Manager, IOC Ltd. v. CCE, Coimbatore reported in 2007 (212) E.L.T. 536 and National Organic Chemical Industries Ltd. v. CCE, Mumbai-VI reported in 2003 (157) E.L.T. 494. 7. On the other hand, the DR submitted that the records nowhere disclose that in....
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....3-2010 was received by the one Sh. Suraj who was the employee of the contractor by name Shri Mahesh Sharma. He was the Contractor of the appellant at the relevant time. Said Suraj had never handed over the said copy to the appellants and, therefore, they had no knowledge of the order delivered on 23-9-2010. It is their case that since the excise officers insisted for recovery of the amount, they enquired about the matter and they came to know from the department that said Suraj had acknowledged of the receipt of the copy of the order and the same was revealed to them on 23-9-2010 whereupon they immediately requested for another copy and after obtaining the same, filed the present appeal. 9. The original application for condonation o....
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....h. Suraj prior to 23-9-2010. Affidavit in para 3 only speaks lack of knowledge of acknowledgement given by Sh. Suraj regarding the receipt of copy and not regarding lack of knowledge of the order to the appellants prior to 23-9-2010. The statement that only on acknowledgement by Sh. Suraj being shown to them, they came to know about the order is neither substantiated by any material on record nor any such statement is found in the original application for condonation of delay. Affidavit is a piece of evidence in support of pleadings. It cannot travel beyond the case pleaded in the application. Application nowhere discloses any lack of knowledge of the order to the appellant prior to 23-9-2010. 11. It is pertinent to note that the fa....
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.... the appellants to justify the delay in the matter in hand. 14. Even otherwise as rightly submitted by the DR, we find that even on merits, there is hardly any case to be considered in the matter in hand. The case against the appellants as was correctly understood by the appellants and summarise by them in their own reply to the show cause notice was as under :- "It has been alleged in the show cause notice that in respect of duty paid stocks lying at the BPC depots, fed by BPC, Manglia terminal, as on the date of implementation of Education cess i.e. 9-7-2004, the duty paid MS/HSD/SKO were sold at the revised price and thereby collected Education Cess and so collected Education cess should be deposited with the Central Governmen....