TaxTMI 
TaxTMI 
TaxTMI 
2021 (6) TMI 952
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....ty. The excess stock of 484.944 MT of S. S. Ingots valued at Rs. 1,55,20,000/- was seized vide panchnama dated 19.11.2005. It was alleged that this appellant had cleared 484.944 MT of S.S. Ingots valued at Rs. 1,55,20,000/- with intent to evade payment of duty amounting to Rs. 25,32,864/-. This amount was deposited by appellant. Pursuant to contested show cause notice, vide order-in-original dated 08.03.2010, the Additional Commissioner (Adjudication), Delhi-I ordered confiscation of seized goods, with option to redeem on payment of fine amounting Rs. 5 lakhs, and further confirmed duty amount of Rs. 27,51,154/- and appropriated the amount of Rs. 27,46,874/- deposited by the appellant Further, penalty of Rs. 27,51,454/- was imposed on - M/s Duggar Fibre Pvt. Limited. Further, penalty of Rs. 5 lakhs was imposed on Shri P. K. Gupta (Director of M/s B. B. Steel Pvt. Limited) under rule 26 of Central Excise Rules, 2002. 2. In appeal filed by the parties, the Commissioner (Appeals) vide order-in-appeal No. 33-35/CE/DLH/2012 dated 28.05.2012, set aside the adjudication order, observing that actual weight of all S.S. Ingots was not done, Shri P. K. Gupta had retracted his statement next ....
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....have not brought on record the proof of delivery at any stage in these proceedings. It is the specific case of the appellant that they had not received the notice of personal hearing too. Thus, it was incumbent upon the Revenue to furnish the proof of delivery. In absence of the proof of delivery, it cannot be said that there is effective service of notice, as contemplated under Section 37C(1)(a) of the Act. There is no such stipulation in the provisions of the Central Excise Act or the Rules thereunder. That in absence of proof of delivery the evidence of despatch cannot be presumed, as proof of service of any order/ notice. It is settled law that the period of limitation can only commence after the receipt or service of the order on the appellant. Admittedly, the appellant was served with a copy of the order dated 28.05.2012, only on 02.11.2016 after several communications with the office of Commissioner (Appeals) with regard to status of the appeal. Reliance is placed by the appellant on the ruling of the Hon'ble Supreme Court in the case of Saral Wearcraft Pvt. Limited vs. CCE&ST - 2015 (322) ELT 192 (SC). Reliance is also placed on the ruling of Privy Council in the case of Na....
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....y was paid (under protest) during investigation before issue of show cause notice, the Hon'ble Delhi High court held as follows:- "11. This court is of the opinion that the facts of the present case clearly point to the petitioner's claim falling within the second proviso to Section 11B of the Act. Concededly, even during the pendency of the adjudication, the petitioner's letter indicating deposits were made (in unequivocal terms) under protest. The adjudication order took note of the earlier statement, which was retracted at the beginning of the adjudication proceedings and found that the retraction was genuine. The adjudication order is an exhaustive one and categorically rules that against all transactions which were stated to be taxed could not have fallen within the ambit of Service Tax. 12. In Mera Baba Realty associate (P) Ltd., vs. Commissioner of Service Tax, Delhi, SERTA No. 26/2016 (decided on 07.09.2016), the Court had set aside the findings of the CESTAT in somewhat similar circumstances, and held that if amounts were paid under protest, and ultimately the adjudication order held that the individual or entity concerned was not liable to be taxed at all, the amounts....
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....ppellant is sufficient proof of service, unless the despatch is returned back undelivered. When the despatch is not returned undelivered, there is presumption of service, unless the parties so claiming not received, rebuts the same with sufficient evidence. Further, states that this appellant had also approached Hon'ble High Court for grant of interest on refund, but the same was withdrawn with leave of the Court to contest the adjudication proceedings before the Department. 11. Having considered the rival contentions, I find that the impugned order has been passed on the presumption by the Commissioner (Appeals) that the order-in-appeal dated 28.05.2012 was served on the appellant, on the basis of evidence of despatch and the contention of the Department that such despatch was not returned back by the Post Office. I find that the learned Commissioner have erred in making the presumption in absence of proof of delivery produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through registered post or speed post to the person for whom it was entitled or his authorised agent with acknowledgement....