2004 (3) TMI 663 - AT - Central Excise

Summary

Issues:
- Appeal against Order-in-Original time limit under Section 35 of Central Excise Act.

Analysis:
The appeal in question was filed by M/s. Periwal Bricks Ltd. to determine if the appeal against the Order-in-Original was submitted within the stipulated time frame as per Section 35 of the Central Excise Act. The appellant's representative argued that they were unaware of the demand of duty confirmed against them until they received a letter from the Range Superintendent, leading to a delay in filing the appeal. It was contended that the Order-in-Original was not received by them due to their factory being closed in 1995, and they only became aware of it in 2003. The appellant emphasized that the appeal was filed within the 60-day limit prescribed by law. Additionally, it was argued that the presumption made by the Commissioner (Appeals) regarding the service of the order via registered post was not valid under Section 37C of the Central Excise Act, as the Department failed to prove the receipt of the order by the appellants.

In response, the Department's representative highlighted that the Order-in-Original was sent to the known address of the appellants, and there was no communication from the appellants regarding any change of address. It was pointed out that the order was not returned by the postal authorities, and when a copy was sent to the appellants, it was confirmed that the original order had been served at the factory gate. The Department argued that the appeal was time-barred as it was filed beyond the specified period under Section 35 of the Central Excise Act.

Upon considering the arguments from both sides, the Tribunal observed that the appellants did not inform the Department of any change in their address. The Order-in-Original was served through registered post as per the statutory provisions, and the fact that a copy was also obtained by an individual from the appellant company further supported the service of the order. The Tribunal noted that the appellants took nearly three months to request a copy of the order after being informed about it, indicating their delay and conduct in the matter. Section 35 of the Central Excise Act mandates that an appeal must be filed within 60 days of receiving the order, with a provision for an additional 30 days under sufficient cause. However, the Commissioner (Appeals) does not have the authority to condone delays beyond 30 days after the initial 60-day period. As the appeal was filed after the 90-day limit, the Commissioner (Appeals) rightfully dismissed it as time-barred. The Tribunal upheld the decision, rejecting the appeal filed by the appellants.