TMI Blog2010 (5) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... m, Advocate, for the Appellant. Mrs. Sudha Koka, SDR, for the Respondent. [Order per : P. Karthikeyan, Member (T)]. Application. No. E/COD/ 238/2009, E/St/403/2009 and Appeal No. E/589/2009 : The application No. E/COD/238/2009 is filed by M/s. Banjara Cements Ltd., Anantpur District (BCL) for condonation of delay in filing the captioned appeal. There is also a stay application for waiver of pre-deposit of dues confirmed against the appellant BCL. Similar applications have been filed by Shri M.M. Reddy, Managing Director, M/s. Banjara Cements Ltd., as regards connected Appeal No. E/590/2009. We take up the applications and appeal filed by the main appellant M/s. Banjara Cements Ltd. 2. The impugned orders-in-appeal No. 47 48/2004 (T) C.E. dated 15-3-2004 disposed appeals filed by BCL and Shri M.M. Reddy, Managing Director, BCL. Vide the orders (common order dated 15-3-2004) impugned in the appeals, the Commissioner of Customs and Central Excise (Appeals), Guntur sustained the order of the original authority demanding duty of Rs. 17,24,138/- (Rupees Seventeen lakhs twenty four thousand one hundred and thirty eight only) found due towards excise duty on cement manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earch was conducted by the officers on 3-11-1998 but the factory was closed since 1-10-1998 and it was sold to financial institutions in 2002 itself. This fact was mentioned even in the show cause notice and the Order-In-Original passed by the original adjudicating authority. The factory assets were subsequently taken over by the Andhra Pradesh State Financial Corporation and AP State Industrial Development Corporation in 2002 itself. The Appellant did not receive any communication and therefore, could not attend the personal hearing before the Appellate Authority to furnish their submissions and to defend their case. All the correspondence with the department made by the Appellants was from their office at Hyderabad. The letters of intimation of personal hearing would have been sent to the office premises of the Appellants which the department normally does in case of closure of a company. In this case no communication was received by the Appellants office with regards to this personal hearing. 5. The Appellants further submits that they have not received the impugned appellate orders passed by the Hon ble Appellate Authority staying the operation of the original order. Therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his notice by his Counsel. He was not able to decipher who the signatory was. The acknowledgment carried the following address : Shri M.M. Reddy Managing Director H. No. 28-A/B, MLA Colony, Road No. 12, Banjara Hills, Hyderabad-34. 6.1 Shri Reddy submitted that he had not been residing at the above address in December 2004 and gave the following addresses in support of the claim that his residence at the material time was not that figured in the acknowledgement produced by the Revenue : 1997-99 : 28A/B. MLA Colony, Road No. 12, Banjara Hills, Hyderabad-34 2000-01 : 8-2-472/A, Road No. 1, Banjara Hills, Hyderabad-34 2002 : 31A/A MLA Colony, Road No. 12, Banjara Hills, Hyderabad-34 2003-04 : 31A/B MLA Colony, Road No. 12, Banjara Hills, Hyderabad-34 June, 2004 onwards : 85, Huda Enclave, Jubilee Hills, Hyderabad-33 6.2 Income Tax returns filed for the years 1997-99, 2000-01, letters received from Kennel Club of India on various dates in the year 2002 and letters received from Standard Chartered Bank during 2003-04 have been enclosed in support of the claim a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the appellants who had received the order-in-original dated 11-1-1994, filed an appeal on 28-1-2000. This was ordered to be accepted since the appellants had not received the order due to closure of the unit. 9. The learned SDR disputed the claim of the appellant that the impugned order had been received by them only in June 2009. She submitted copies of letters dated 11-7-2006 and 18-2-2008. In the letter dated 11-7-2006 addressed to the Assistant Commissioner, Customs Central Excise, Anantpur Division by Shri M.M. Reddy, he claimed that he had not received orders-in-original No. 8/2000 dated 24-11-2000 and No. 5/97 dated 5-11-1997. In letter dated 18-2-2008, it is indicated that he was in receipt of the letter of the Assistant Commissioner, Anantpur regarding payment of dues of Rs. 6,00,000/- (Rupees Six lakhs only). This letter spoke of the order which had apparently confirmed dues of Rs. 6,00,000/- (Rupees Six lakhs only) as having been passed ex parte. She relied on the decision of the Tribunal in S.A. Plywood Industries v. CCE, Siliguri reported in 2008 (230) E.L.T. 329 (Tri.-Kolkata) = 2010 (17) S.T.R. 616 (Tri.)] in support of the claim that despatch of the order by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al in June 2009 can be held to have been filed in time. In the case of S.A. Plywood Industries v. CCE, Siliguri (supra) cited by the learned SDR, the Tribunal had considered the question whether despatch of adjudication order by speed post by the Revenue could be held to have been service on the person for whom the order was meant. Relying on the judgment of the Hon ble High Court of Madras in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras [2000 (126) E.L.T. 65 (Mad.)], the Tribunal held as under : 6.3. The learned Counsel for appellant neither disputed evidence of service nor the person for whom that was meant to be served. Manner of service of an order passed under law is specified by Section 37C of the Central Excise Act, 1944. Despatching the adjudication order by Speed Post by Revenue, it has fulfilled requirement of Section 37C(2) of the Act and that was deemed to have been served on the person intended. Revenue having established proof of service by Speed Post as stated aforesaid, there is no scope to hold that there was no service of the order in accordance with law . 12.1 In the judgment of the Hon ble High Court relied on by the Tribunal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2009. Therefore, there is no delay to be condoned. The application for condonation of delay is rejected as infructuous. 14. We find that the impugned order had dismissed the appeal filed by BCL on merits as well as for failure to make pre-deposit ordered. The main grievance of the appellants is that the impugned order was passed ex parte in violation of principles of natural justice. We find that the impugned order had been passed without hearing the appellant. The appellant had not received the intimation of personal hearing. It is obvious that the appellants had not received the order u/s 35F to make pre-deposit issued by the Commissioner (Appeals). In the circumstances, we dispense with the requirement of pre-deposit under Section 35F of the Act to hear the instant appeals. As the impugned orders had been passed without hearing the appellants, we remand the matter for a fresh decision by the Commissioner (Appeals) following principles of natural justice. The stay application and appeal filed by BCL are disposed of. E/COD/239/2009, E/St/404/2009 in E/590/2009 and Appeal E/590/2009 15. Shri M.M. Reddy has filed the COD application No. E/COD/ 239/2009, stay application No. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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