TaxTMI 
TaxTMI 
2015 (4) TMI 30
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.... case. 2. Brief facts of the case are that M/s Rekha Copper & Copper & Copper Alloy Pvt. Ltd., Baroda have filed a rebate claim under Rule 18 of the Central Excise Rules. During the processing/scrutiny of the rebate claim, it was interalia noticed that the actual quantity exported did not tally with the shipping bill, bill of lading and excise invoices and that the duplicate copy of excise invoice was not submitted. Accordingly, Deficiency Memo-cum-Show Cause Notice was issued to the respondent. The assistant Commissioner (Rebate), Raigad considering the written submission filed by the claimant, rejected both the rebate claims filed by the respondent vide the impugned order-in-original on the grounds that the actual quantity ....
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....any remarks from the post authorities to the effect that the service of the letter/order was delayed, it could be safely assumed that the order was received within the ordinary time period of two days. Commissioner (Appeals) has erred in not appreciating that the claimant had themselves in the appeal filed in Form EA-1 submitted the date of receipt of order as 14.03.2008. This is further substantiated by the fact that the claimant had originally filed an application for the condonation of delay of 45 days in filing of the appeal wherein it was very specifically provided that they had received the order in original on 14.03.2008. The appeal and the condonation were duly signed by the director and the company seal was affixed on the body of t....
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....y paying document. The Commissioner (Appeals) has therefore erred in holding that conclusion of the adjudicating authority that the genuineness of the export was not established, was not correct. Commissioner (Appeals) has erred in not following the ratio of the judgment in the case of S.A. Plywood Industries v/s CCE, Siguri as reported in 2008(230) ELT 329 (Tri-Kol) wherein it is provided that the service through speed post and when same not returned back by postal authorities with any remark-Requirement of Section 37C (2) of the Central Excise Act, 1944 fulfilled - Order/Notice deemed to have been served on the person intended. 5.. A show cause notice was issued to the respondents under Section 35EE of the Central Excise Act 1944....
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....h of tribunal on 10.7.2006. In view of the said settled law, the case laws cited by revenue is not applicable and the grounds such as the 'presumption of receipt' or the 'onus on the recipient to prove, all are legally not sustainable. Therefore the revenue's application is required to be dismissed as devoid of any merits. 5.3 Cross objectionist further submit that as regards the difference in qty, that out of 11 items covered in the said goods only 3 items are under 'Claim of rebate', the qty of goods was 5895 kgs The total qty of goods exported is 8448.710 kgs. This gross weight was evident from the shipping bill, mate receipt, bill of lading. ARE-1 quantity cannot be compared with the shipping bill quanti....
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....ernment observes that the appellate authority condoned the delay of 45 days, which is beyond his statutory limit of condonation of delay of 30 days in filing appeal before him. The appellate authority observed that impugned order-in-original was received by respondents on 7.4.2008 and the appeal was filed before him on 1.7.2008. As such there was delay of only 24 days in filing appeal. The appellate authority also observed that the department could not submit any proof of service of impugned order-in-original to support their claim that impugned order-in-original was received by respondent much prior to 7.4.2008. Government notes that department has pointed out that said order-in-original was sent by speed post on 12.3.08 and Pa....