TaxTMI 
TaxTMI 
2017 (1) TMI 648
X X X X Extracts X X X X
X X X X Extracts X X X X
....p; Rs.2,23,622/- (interest) Rs.25,000/- E/20809/2015 2004-05 Rs.20,384/- Rs.10,000/- Appeal No. Period Demand Penalty E/20810/2015 September 2004 Nil Rs.1,24,811/- E/20811/2015 10/2004 Rs.45,277/- & Rs. 906/- Rs.42,043/- E/20812/2015 April to July 2005 Rs.4,68,569/- Rs.9,371/- Rs.25,000/- E/20813/2015 December 2994 Nil Rs.10,000/- E/20814/2015 2001-02, 2002-03,2003-04 Rs.4,18,234/- Rs.1,84,338/- Rs.2,33,896/- 2. The impugned order dated 29.10.2014 passed by the Commissioner (A) dismissed all the appeals on time bar as the same have been filed beyond the condonable period of 30 days after the 60 days time for filing the appeal before the Commissioner (A). 3. Briefly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uary 2005 only by September 2005. Appellant filed reply to the show-cause notice but the Asst. Commissioner without considering the submissions of the appellant mechanically confirmed the demand and imposed huge artificial amount as penalty vide its order dated 28.2.2006. The order of the Assistant Commissioner came to be served on the security personnel entrusted with guarding the appellants premises since the lockout order was in force and no other staff was available. The security personnel had neither passed on copies of the order to the office of the appellant nor had the appellant been alerted of the same in any way and the appellant remained ignorant about passing of the said order till March 2008 when the representative of the appe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y the impugned order, appellants have filed these appeals. 4. Heard both the parties and perused the records. 5. The learned counsel for the appellant submitted that the impugned order passed by the Commissioner (A) holding the appeal as time bar is not sustainable in law and is passed in defying the Tribunals order dated 20.5.2014. He further submitted that the Tribunal passed the order dated 20.5.2014 when the Tribunal was convinced of the merit in the content of the appellant as to the appeals being filed on time with the COD application being only a precautionary measure taken in consultation with the departmental authorities. He further submitted that the Division Bench of the Tribunal vide order dated 20.5.2014 directed the Commiss....
X X X X Extracts X X X X
X X X X Extracts X X X X
....mmunication on the appellant. Security personnel are in principle independent contractors and not agents of the appellant. The appellant is not bound by the acts and omissions of third parties. He further submitted that the learned Commissioner failed to consider the principles enshrined in Section 35(o) of the Central Excise Act, 1944, when determining the period of limitation for filing the appeal. Section 35(o) states as under: Exclusion of time taken for copy In computing the period of limitation prescribed for an appeal or application under this Chapter, the day on which the order complained of was served, and if the party preferring the appeal or making the application was not furnished with a copy of the order when the notice....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he matter to the Commissioner (A) with a request to decide the appeals and COD applications after giving reasonable opportunity to the appellant to present their case in accordance with law. This direction of the Tribunal according to me means that the Commissioner (A) should have decided the appeal on merit also and should not have dismissed the appeal only on time bar. The intention of the Bench while passing the order dated 20.5.2014 is very clear and the Commissioner (A) should have decided the appeal on merit rather than dismissing the appeals as time barred. It is pertinent to note that the appellant during the pendency of this appeals, filed a RTI application before the department seeking information regarding the various Orders-in-O....