2009 (10) TMI 548 - HC - Central Excise

Commissioner of Central Excise -Authority to condone the delay - copy of the order was not at all delivered - photocopy of the purported receipt allegedly obtained by the courier service agency at the time of alleged delivery of the adjudication order to an alleged employee of the appellant - copy of the statement by the proprietor of the courier service agency which says that he personally delivered the envelope to employee of the appellant company - there was no such employee in the organization of the appellant Held that - not very clear to us whether the adjudication order was ever delivered to the appellant company - too risky to accept the contention of a proprietor of a private courier service in order to frustrate a statutory right of a citizen - we set aside the order of the tribunals below and hold the appeal was presented in time.

Summary

Issues:
1. Whether the appeal before the Commissioner of Central Excise (Appeal II) was barred by limitation.
2. Whether the Commissioner of Central Excise (Appeal II) had the authority to condone the delay.
3. Whether the adjudication order was properly delivered to the appellant company.

Analysis:
1. The High Court considered an appeal against an order that found the appeal before the Commissioner of Central Excise (Appeal II) to be time-barred. The appellant argued that the appeal was not barred by limitation as they were entitled to receive a copy of the adjudication order, which they claimed was not delivered to them. The court noted the absence of the original receipt and set aside the lower tribunals' decision, holding that the appeal was presented in time.

2. The court examined the issue of whether the Commissioner of Central Excise (Appeal II) had the authority to condone the delay in the appeal process. It was acknowledged that the Commissioner did not have the power to condone the delay. The appellant's counsel raised the argument that their client did not receive a copy of the order, which was crucial for determining the timeliness of the appeal. The respondent provided a photocopy of a receipt from a courier service allegedly confirming the delivery to an employee of the appellant. However, doubts were raised regarding the existence of the named employee in the appellant's organization. The court emphasized the importance of ensuring the proper delivery of such crucial documents to avoid disputes and ruled in favor of the appellant.

3. The court delved into the issue of whether the adjudication order was effectively delivered to the appellant company. Despite the submission of a photocopy of a receipt by the respondent, doubts persisted regarding the actual delivery. Given the lack of concrete evidence and the risk associated with relying solely on the courier service proprietor's statement, the court decided to set aside the previous orders and deemed the appeal to have been presented on time. The court directed the Commissioner to proceed with considering the appeal on its merits within a specified timeframe.

4. The judgment concluded by disposing of the appeal, rendering the stay application moot, and instructing each party to bear their respective costs. Additionally, the court mandated the parties to act based on a xeroxed signed copy of the order provided to them.