TaxTMI 
TaxTMI 
2013 (10) TMI 352
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....he has, in fact, condoned the delay beyond what is provided in the statute. This is contrary to the letter and spirit of the provisions of Section 35 prescribing the time limit. Commissioner (Appeals) should not have admitted the appeal and therefore, the order of the Commissioner (Appeals) is not legal and proper. Accordingly, the order of the Commissioner (Appeals) is set-aside and order of the original authority is restored. 2. Against the above order dated 10.12.2007 of CESTAT Respondent, M/s. Shivam Textiles moved to Hon'ble Gujarat High Court by Tax Appeal No. 2647 of 2010 and the Hon'ble High Court vide order dated 03.7.2012 remanded the case back to this Bench for fresh consideration after giving notice to both the parties and after hearing them. It was also clarified by the Hon'ble High Court that it has neither gone into the merits nor have expressed any opinion on merits. 3. Brief facts of the case are that Respondent is engaged in the manufacture of textile fabrics. The officers of the Central Excise searched the premises of the Respondent on 08.7.2003 and again on 15.7.2003 and found certain quantity of yarn, as well as grey fabrics, in the factory which were manufac....
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....red on 03.10.2006 when Shri Mittal enquired about the same. Commissioner (Appeals) under Order-in-Appeal dated 24.01.2007 held that appeal was filed in time by holding date of receipt of OIO to be 03.10.2006 by making following observations:- 4. After going through the acknowledgement and the affidavit and specially the facts and circumstances of the case, I do not find any inconsistency as regards dispatch of the order and it receipt and at the same time, the submissions which has been raised by the appellants in view of their deposition through the affidavit. To me it appears that in fact they have received the order only on 03.10.2006. The question arises, whether the appellants would be able to draw undue benefit by filing such an affidavit by which they are getting extra period for filing appeal which on merits of the case would not be due to them. In my considered view, there would be no diversion of course of justice, more so having regard to the merits of the cases and in facts and circumstances. I find that if the fact of receipt of the OIO on 03.10.2006 is not accepted and is not being given effect to, there is likely to be substantial injustice to the appellants. There....
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..... (ii) That no reasons have been given in the authorisation given under Section 35A and Section 35 (B) (2) of the Central Excise Act, 1944, by Committee of Commissioners as to why the order passed by Commissioner (Appeals) is not legal and proper. 6.2 Shri Paritosh Gupta (Advocate) of the appellant relied upon the following cases to argue the point that appeal shuld be dismissed for improper authorisation:- (a) CCE Delhi vs. B.E. Office Automation Products Pvt. Limited [2010 (249) ELT 24 (P&H)] (b) MSP Steel & Power Limited vs. CCE, Raipur [2011 (2667) ELT 10 (Chhattisgarh)] (c) CCE Allahabad vs. U.P. State Sugar Corporation [2009 (246) ELT 253 (Tri. Del.)] (d) CCE Delhi vs. Kandalia Industries [2012 (279) ELT 351 (Del.)] (e) CCE Meerut vs. Pioneer Fabricators (P) Limited [2011 (24) STR 125 (Tri. Del.)] (f) CCE Indore vs. Hukum Chand Rolling Mills [2010 (261) ELT 1159 (Tri. Del.)] (g) CCE Kolkata vs. Venu Pump & Engineering Works [2009 (246) ELT 441 (Tri. Kolkata)] (h) CCE Siliguri vs. Mukta Biri Factory [2007 (212) ELT 285 (Tri. Kolkata)] 7. Shri S.K. Mall (AR) appearing on behalf of the Revenue countered the argument of the appellant by relying upon the following case ....
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....se of CCE Kanpur vs. Ufan Chemicals [2013 (290) 217 (All.)], the following was held in Para 11 & 12 of the decision:- 11. In the present case, the observation of the Tribunal, that the Commissioners did not take the decision on the same day and thus they were not ad idem at the same time to authorise the filing of appeal, apparently goes beyond the object of authorisation under Section 35B(2) of the Act. In order to avoid filing of frivolous appeals and unnecessary appeals, the Legislature has provided for an authorisation by the Committee of Commissioners of Central Excise. The method and manner, in which such authorisation is obtained, is not an issue on which the Tribunal could in the absence of any objection make an enquiry to arrive at a finding whether such authorisation was given in accordance with the law. 12.?We may also observe here that there are no statutory rules, providing that the Commissioner will sit on the same day at the same time and take a decision authorising a Central Excise Officer to file the appeal. The decision would not suffer from any fatal error unless it is shown that the decision is obtained without application of mind by the Commissioners either s....
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....0.1 On the issue of 25% reduced penalty advocate of the Respondent argued that 25% option of reduced penalty payment under Section 11AC of the Central Excise Act, 1944 was not given to them by CESTAT which can be given by the appellate authority as held by Gujarat High Court in the case of Commissioner of Central Excise & Cus., Surat vs. Suncity Synthetics [2011 (273) ELT 211 (Guj.)]. He further argued that when 25% amount was paid by the Respondent before issue of show cause notice the same has to be considered as due penalty paid within one month of the date of determination by Adjudicating Authority. 11. So far as service of OIO through RPAD is concerned, it is not a disputed fact that the said OIO was received by an employee of the Respondent on 06.4.2006 but it was claimed before Commissioner (Appeals) that the employee forgot to hand over the same to the Respondent and kept the same in a drawer. Affidavits to that effect were filed by the Respondent and the concerned person before Commissioner (Appeals). In the case of Amidev Agro Care Pvt. Limited vs. UOI (supra), Hon'ble Bombay High Court, relied upon by the Revenue, it has been held in Para 6 of this order that the commun....