TaxTMI 
TaxTMI 
2019 (12) TMI 115
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....issed the appeal as being barred by time since, according to the Commissioner, the appeal was filed on 4 September, 2018 against an order dated 29 August, 2017 passed by the Assistant Commissioner, which order had been served upon the Appellant on 12 September 2017. 2. The Appellant had claimed refund of Oil Cess paid in excess by the Appellant on account of difference in the foreign exchange rate applied by the Appellant at the time of invoicing (which was the provisional exchange rate) and the foreign exchange rate prevailing at the time of payment, which was the relevant rate for computing the transactional value of Crude Oil in terms of the Crude Oil Sale Agreement. The refund claim was filed before the Assistant Commissioner on 30 May, 2017 pertaining to the period from June 2016 to August 2016 and January 2017 to March 2017 under Section 11 (B) of the Act. A show cause notice dated 9 August, 2017 was, however, issued by the Assistant Commissioner seeking an explanation from the Appellant as to why the refund claim filed by the Appellant should not be rejected. A detailed reply was filed by the Appellant, but the Assistant Commissioner by order dated 29 August, 2017 rejecte....
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.... to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order: Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days." 5. The Commissioner (Appeals), as noticed above, dismissed the appeal filed by the Appellant on 4 September 2018 by order dated 1 January, 2019 finding it to be barred by time. The relevant portion of the order passed by the Commissioner (Appeals) on this aspect is reproduced below: "6.1 I find that Order-in-Original No. 28/2017-R was issued on 29.08.2017 and appellant has contended in Appeal Form ST-04 that the said OIO has been received on 06.08.2018, it appeared that there was abnormal delayed in receipt of OIO from the date of issue. Therefore, this office vide letter dated 25.10.2018 has asked the adjudicating authority to intimate the actual date of delivery of the impugned order along with the documentary proof. The adjudicating authority vide letter dated 20.11.2018 has informed that t....
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....has delayed in filing this appeal 308 days from the issue/receipt of the impugned order. I find that as per proviso clause under Section 35 of the Central Excise Act, 1944, the Commissioner (Appeals) may be condoned delay in filing appeal of thirty days. In the instant case as the appeal filed on 04.09.2018 is beyond permissible time limit of thirty days hence cannot be condoned. 7. I find that various Tribunal/ Courts have held that Commissioner (Appeals) has no power to condone delay beyond statutory prescribed period. 8. In view of above, I hold that the appeal filed by Appellant is time barred in terms of proviso to 35 (1) of the Central Excise Act, 1944. I, therefore, dismiss the appeal without going into merits of the case." [emphasis supplied] 6. It has been specifically stated in this Appeal that the finding of the Commissioner (Appeals) that the order dated 29 August, 2017 was sent by speed post bearing no. ER924187517IN on 1 September, 2017 is factually incorrect. It has been stated that the envelope of the aforesaid speed post sent on 1 September 2017 bearing no. ER924187517IN contained a letter number C.No.: CE-5/02/Vedanta/Royalty/17-18/1740 tha....
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....2017 (i.e. within 15 days from the date of issue of Order-in-Original), the impugned Order-in-Appeal deserves to be set aside." 7. The Appellant has also stated in this Appeal that since it had not received the original order dated 29 August, 2017 on 12 September, 2017, it filed an application under the Right to Information Act on 9 January, 2019 seeking the following information: "1. Photo copy of the dispatch register vide which order-in-original No. 28/2017-R dated 29 August 2017 (F. No. V(Rfd.)18/JDR/121/2017-1552-56) was sent to M/s Cairn India (Now Vedanta Limited). 2. Copy of the Speed post/Registered Post receipt along with the tracking No. for dispatch of the aforesaid O-I-O No. 28/2017 dated 29/08/2017." 8. The Assistant Commissioner by letter dated 5 February 2019 supplied a copy of the dispatch register as also the speed post register. 9. The Appellant has further stated in this Appeal that as the said documents supplied to the Appellant under the Right to Information Act appeared to be tampered with, an inspection of the records was requested on 20 February 2019 and the inspection was allowed on 20 February, 2019. On the basis of the inspecti....
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....n-B, Jodhpur and he was duly informed of the results of inspection" 10. When the matter was earlier taken up by the Tribunal on 11 April, 2019, submissions were made by the learned Counsel for the Appellant on the basis of the facts stated in the appeal and the affidavit and a detailed order was passed, which is reproduced below: "The Commissioner (Appeals) by order dated 1 January, 2019 dismissed the appeal filed by the appellant against the Order-in-Original dated 29 August, 2017 for the reason that it was filed beyond the period stipulated in Section 35F of the Central Excise Act, 1944. In the appeal form, the appellant contended that it received the Order-in-Original on 6 August, 2018. The Commissioner (Appeals) doubted this contention of the appellant as according to him there was an abnormal delay. The Commissioner (Appeals), therefore, sought a report from the Adjudicating Authority as to the correct date of actual delivery of the impugned order with documentary proof. The Adjudicating Authority, as has been noticed by the Commissioner (Appeals) in paragraph 6.1 of the order, informed that the Order-in-Original was issued on 29 August, 2017 and it was sent by Spe....
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....h ER902. 7. Learned Counsel for the appellant has also placed the affidavit of two Advocates namely Shubham Tyagi and Shri D.K. Nayyar who had undertaken the inspection of speed post register and despatch register on 20 February 2019. They have stated in the affidavit that the entry against date 1 September 2017 appears to have been inserted as not only it bore a speed post number beginning with 824 but Vedanta Limited was written in English, whereas the other entries were written in Hindi and in a different style when compared with the other entries on the said page. 8. As noticed above, the appeal was dismissed by the Commissioner (Appeals) only for the reason that since the Order-in-Original was served upon the Appellant on 12 September 2017, the appeal was filed beyond the period provided in Section 35F of the Central Excise Act. 9. In this view of the matter, the contents of the despatch register and the speed post register assumes importance. 10. In view of the averments made in the affidavit filed by the two lawyers, it is considered necessary to direct the Assistant Commissioner in charge of the Adjudication Cell to file his personal affi....
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....educated and therefore overwriting was not intentional. 5. The speed post register is maintained for internal monitoring purpose only. With regard to Dispatch Register:- 1. The dealing assistant in her statement tendered before me on 08.05.2019 stated that the register was closed at the end of the year 2017 and was kept in her table drawer after that. After receipt of letter dated 02.08.2018 from the assessee M/s Vedanta Limited, seeking therein the status of the show cause notice, when the dealing assistant was asked about dispatch of this order, She checked the register and found it in torn condition on 02.08.2018. She never brought this in notice of any one in the office till this was pointed out during the inspection done by Sh. Shubham Tyagi and Sh. D.K. Nayyar on 20.02.2019. 2. The dispatch serial No. 1555 against which there is whitener does not pertain to the assessee i.e. M/s Vedanta Limited but pertains to CGST Range X Balotra. She has stated that she does not remember anything as to how the whitener has come against the dispatch entry 1555. She also told that she keeps these register in her table drawer which is without lock and key an....
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....ct 1 September 2017 has been written on the same line in which the last entry relating to the earlier date 31 August 2017 ends; (iv) In this Appeal Memo as also the earlier order dated 11 April 2019 passed by the Tribunal, there is a clear averment that the envelope said to have been sent on 1 September, 2017 with speed post no. ER924187517IN did not contain the order dated 29 August, 2017 and in fact contained a letter dated 1 September 2017 sent by the Superintendent of Central Goods and Service Tax, Range-II, Jodhpur in connection with an entirely different matter, but neither has any document been placed by the Department to show when and how the said letter dated 1 September 2017 was sent to the Appellant by the Range Office nor there is denial of this fact in the affidavit filed by the Assistant Commissioner; (v) There is no plausible reason as to why the order dated 29 August 2017 passed by the Assistant Commissioner in the Division Office would be sent by speed post by the Range Office. The show cause notice resulting in the order dated 29 August 2017 and the order dated 29 August 2017 were sent to the Appellant by speed post on 6 August 2018 by the Divisi....
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....aim filed by the Appellant under section 35 (1) of the Act on 30 May 2017. The claim pertained to the period commencing June 2016 upto August 2016 and from January 2017 upto March 2017. The refund was claimed by the Appellant because it claimed to have paid excess Oil Cess on account of difference in the foreign exchange rate applied by the Appellant at the time of invoicing and the exchange rate prevailing at the time of payment. The refund claim was rejected by the Assistant Commissioner by order dated 29 August, 2017 on merits as also on account of unjust enrichment. 17. The contention of the Appellant is that prior to the filing to the refund claim on 30 May 2017, the Appellant had earlier also filed a refund claim on 24 March 2017 for the period March 2016 to May 2016 and though the Assistant Commissioner had rejected the refund claim, but the appeal filed by the Appellant before the Commissioner (Appeals) was allowed by order dated 8 June, 2018 holding that the Appellant had paid excess Oil Cess and that the Appellant had not been unjustly enriched. This order was received by the Appellant on 2 August 2018, on which date the Appellant had also requested that a decision be ....
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....d the original records, a detailed order was passed on 11 April, 2019, pursuant to which the original speed post register and the original dispatch register have been produced by the Department. The Assistant Commissioner has also filed his personal affidavit. 22. The Appellant had specifically stated in the memo of appeal before the Commissioner (Appeals) and has also categorically stated this Appeal that the order dated 29 August, 2017 was not served on the Appellant prior to 6 August, 2018. The speed post register has been very carefully perused. It shows that after each change of date, there is a gap of at least three lines or the next date starts on a different page. It also shows that before an entry of a particular date starts there is a gap of one line and after each entry of a particular date, there is also a gap of at least one line. What transpires from a perusal of the relevant page 80 of the Speed Posts Register in connection with date 1 September, 2017, is that there is no gap of even a single line after the last entry of date 31 August, 2017 and writing of the date 1 September, 2017. In fact 1 September 2017 has been written on the same line in which the last entr....
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....n office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses." 25. It is not possible to accept this explanation submitted by the Assistant Commissioner in his affidavit. 26. If an order, particularly when it is an order relating to rejection of a refund claim is given by hand by the Division Office to an officer of the Range Office for service upon an assessee, then it has to be in writing and an entry has to be made in the relevant Register/ Peon Book of the Division Office. Further, an entry in the relevant Register/ Peon Book of the Range Office has to be made on receipt of the letter. If the order dated 29 August 2017 was sent by speed post to the Appellant by the Range Office, then it has to be entered in the dispatch register of the Range Office. If information regarding dispatch of this order by speed post has been conveyed by the Range Office to the Division Office, then again a letter has to be sent with respective entries in the Register/ Peon Book of the Range Office and the Head Office. The affidavit does not mention about such entries in the Registers/Peon Books. The averment is based only on some....
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....ered by the Assistant Commissioner in his affidavit. In fact this explanation controverts the statement made by the Assistant Commissioner that the envelope was given to an officer of the Range Office for delivery upon the Appellant to minimise expenditure. 30. It is also important to notice that till such time the Appellant had not pointed out the discrepancies in the Speed Post Register, the stand of the Department was that the order was dispatched from the Division Office on 1 September 2017 because when the Commissioner (Appeals) sought a query from the Adjudicating Authority regarding actual date of delivery of the order, the Adjudicating Authority by letter dated 20 November 2018 informed that the order was sent by Speed Post No. ER924187517IN on 1 September 2017 and the same had not returned back as per their office record. This fact has also been noted by the Commissioner (Appeals) in the impugned order. 31. The matter can be examined from another angle and this will clinch the issue in favour of the Appellant. The Appellant had specifically stated in the memo of appeal that the envelope bearing no. ER924187517IN actually contained a letter dated 1 September, 2017 bea....
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....nt that the envelope was dispatched from the Range Office and contained a letter dated 1 September 2017 addressed by the Superintendent, Central Goods and Service Tax, Range (Balotra), Jodhpur in connection with an issue that a licence granted by the Government to a company to exploit a natural resource is taxable and hence liable for Service Tax. 34. The aforesaid discussion leads to a conclusion that the order dated 29 August 2017 was not contained in the envelope bearing speed post no. ER924187517IN and what was contained in the said envelope was a letter dated 1 September 2017 sent by the Superintendent in the Range Office to the Appellant. 35. This finding also supports the finding earlier recorded that manipulation was done in the Speed Post Register of the Division Office at page 80 by inserting the date 1 September 2017 after 31 August 2017, and before 4 September 2017 to make out a case that the order dated 29 August 2017 had been dispatched by speed post to the Appellant on 1 September 2017 whereas it was a letter dated 1 September 2017 that was dispatched to the Appellant by Speed Post from the Range Office. 36. At this stage, it will also be appropriate to refe....
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.... him. 40. On the basis of the records, it has been established that manipulation and forgery was committed in the Speed Post Register of the Division Office. Once such a finding has been recorded, it becomes necessary to cause an enquiry to be made to determine as to who were responsible for this act. It is, therefore, considered necessary to bring this fact to the notice of the Chairman of the Central Board of Indirect Taxes and Customs to cause an enquiry. A copy of this order shall, therefore, be sent by the office of the Tribunal to the Chairman of the Central Board of Indirect Taxes and Customs. The two registers and the letter dated 1 September 2017 with the envelope shall be kept in a sealed cover with the Registrar of the Tribunal to be made available as and when required. (Dictated and pronounced in the open Court) (JUSTICE DILIP GUPTA) PRESIDENT BIJAY KUMAR: 41. The present appeal is filed against the order dated 01.01.2009 passed by the Commissioner (Appeal). The Commissioner (Appeal) dismissed the appeal filed by the Appellant on the ground of having been filed beyond the period specified in Section 35 F of the Central Excise Act, 1944. It is the conte....
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....rned Counsel of the appellant has placed before us the envelop bearing Speed Post No. ER924187517IN and has stated that the envelop in fact contained a letter dated 1 September, 2017 bearing No. 1740 sent by the Office of Superintendent, Central Goods and Service Tax Range. He has also placed copy of the envelop sent by office of the Assistant Commissioner, Central Goods and Service Tax, Range-B bearing Speed Post No. ER956930766IN, containing the Order-in-Original which the appellant received on 11 August, 2018, though it was earlier received by the appellant by hand on 6 August, 2018. 3. Learned Counsel for the appellant has also placed the copy of the despatch register and speed post register which were supplied to him on 5 February 2019 under the Right to Information Act and which are contained at page No. 499 and 500 of the Appeal. 4. A perusal of the speed post register indicates that as against the date 31 August, 2018, there are two entries and the name of the sender is mentioned with Speed Post No. ER902033584IN and No. ER902033598IN. Likewise, the entries of date 4 September 2017 bear Speed Post Nos. ER90206336861IN,ER9033505IN, ER902034718IN and ER 0902....
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....e board." 43. In compliance of the direction of this Tribunal, the Assistant Commissioner filed his personal affidavit and also submitted original dispatch register and speed post register on the 10 May, 2019 before the bench. In affidavit, the Assistant Commissioner averred as under; "2. The dealing hand has intimated that the said Order in Original was given by hand to the concerned officer of Balotra range for service to the assessee. The said order was then sent by Balotra range through Speed post ER924187517IN, which was then informed to dealing hand, who mentioned the same number in the Speed post register of the division office. It is submitted that it is a common practice to send the posts through Range offices to minimise the postal expenses. 3. On examination of the speed post register it can be seen that the number of lines skipped in the Speed post register are not fixed as the same are 2 or 3 or 4 at different pages. It may also be due to the fact that Mrs. Sunita Java is only 10th passed. 4. On examination of the speed post register it can be seen that the numbering of the pages has been corrected by overwriting. The dealing assistant who....
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....whether the Range Officer had dispatched the adjudication order or the letter dated 1 September 2017 by speed post on 1 September 2017, which was delivered to the Appellant on 12 September 2017. 2. The file may, therefore, be place before the President for referring the matter to a third Member. (BIJAY KUMAR) MEMBER (TECHNICAL) (JUSTICE DILIP GUPTA) PRESIDENT Date of Hearing: 25.11.2019 Date of Decision: 27.11.2019 Miscellaneous Order No. 50/2019 Per Dr. D M Misra: Heard both sides. 2. The present matter has been referred to third member by Hon'ble President on account of difference of opinion in the Bench comprising of Hon'ble President and Hon'ble Member (Technical) on the issue whether the appeal filed by the Appellant against the Order passed by the Assistant Commissioner dt. 29.08.2017 was within the time limit prescribed under Section 35(1) of Central Excise Act, 1944 and accordingly the Appeal be remanded to the Commissioner(Appeals) for deciding the case on merit or further enquiry is necessary to ascertain the date of communication of the Order. 3. To appreciate the point of difference, it is necessary to narrate the facts in brief even ....
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.... date of communication of the order in filing the Appeal, hence the Appeal has been filed beyond the time period prescribed under Section 35(1) of CEA, 1944, accordingly rejected the appeal. 8. Before the Tribunal the learned Advocate for the appellant has argued that since the order was communicated to them on 06th August, 2018 for the first time and the appeal was filed on 04th September, 2018, therefore, the rejection of the appeal by the learned Commissioner (Appeals) is bad in law. To ascertain the actual date of communication of the order dated 29.08.2017, an Interim Order was passed by this Tribunal on 11.04.2019 directing the Revenue to file appropriate affidavit to answer the averments made in the affidavit filed by the Lawyers of the Appellants, enclosed with appeal paper book. Consequently, the Assistant Commissioner filed an affidavit on 09th May, 2019 and forwarded speed post register as well as dispatch register maintained during the relevant period at the Division office. 9. The Hon'ble President on perusal of the Registers, analysis of the evidences on record and the affidavit filed by the Assistant Commissioner arrived at the conclusion that the order has bee....
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....hat the order has not been delivered in accordance with Section 37C of the Central Excise Act, 1944, therefore, the date of communication be considered as 06th August, 2018 hence, the appeal is within time. 12. The learned Authorised Representative for the Revenue has submitted that the relevant Speed post, dispatch register and postal envelopes have been examined by the Tribunal. He has contended that there is no dispute of the fact that the speed post bearing no. ER924187517IN dated 01.09.2017 has been dispatched from the Range Office, Balotra but the content of the said envelope is under dispute. He has submitted that in the affidavit of the Assistant Commissioner, it is mentioned that it is a common practice to send the post through Range Office to minimise the postal expenses; which should be understood to mean that it is a common practice to send office dak and some letters by hand delivery to the assessees through the Range Office to minimise the expenses of sending the same by post from the Division office. He has submitted that from the postal charge and size of the envelope with the speed post bearing no. ER924187517IN, it is clear that the adjudication order dated 29.....
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....eed post letter was delivered. 17. I find that the appellant even though not disputed the receipt of the said speed post letter no. ER9241875719IN dated 01.09.2017 but contended that it was a letter written by the Range Superintendent to the Appellant in the context of applicability of service tax on the License/royalty fees, and the said envelope did not contain the adjudication order dated 29.08.2017 issued by the Assistant Commissioner. The department could not place any evidence to rebut the said claim of the Appellant. 18. No doubt delivery through speed post in ordinary course be presumed to have been complied with the provisions of Section 37C of CEA, 1944 ,unless the speed post returned back by the postal authorities as undelivered, however, it is a rebuttable presumption and the addressee could rebut through evidences that the speed post has not been delivered to him. This principle has been laid down by the Hon'ble Madhya Pradesh High Court in the case of Indore Municipal Corporation vs. Commissioner of Central Excise, [2016 (338) ELT 567 (MP)]. 19. In the present case the appellant could able to demonstrate and rebut the presumption that the order dated 29.08.20....
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....out by the Advocates in their affidavit. Thus, it remains with the authority to examine internally about the lapse on the part of the officers. But, as far as the appellant is concerned, they should not made to suffer as the order has been communicated only on 06th August, 2018, hence there is no delay in filing the appeal. 23. In these circumstances, I agree with the findings and conclusion of the Hon'ble President that order dated 29.08.2017 has been communicated to the Appellant only on 06.08.2018, and the Appeal has been filed before Commissioner(Appeals) within the time limit prescribed under Section 35(1) of CEA,1944. Consequently, the impugned Order deserves to be set aside and the matter be remanded to the learned Commissioner (Appeal) to decide the issue on merits. 24. This order may be placed before the Division Bench for passing the Final Order. (Order pronounced in open court on 27.11.2019) (Dr. D M Misra) Member (Judicial) Order In view of the opinion rendered by the Hon'ble Third Member we pass the following order. 2. The order dated 1 January 2019 passed by the Commissioner (Appeals) is set aside as the Appeal was filed by the Appellant within....
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