9911796707
TMI Blog2014 (2) TMI 1097X X X X Extracts X X X X X X X X Extracts X X X X ..... the following question would be sufficient for disposal of the appeal. "Whether in the facts and circumstances of the case there can be a deemed service of the order on the appellant merely because it was sent under registered cover and no acknowledgment was received more so than there was a specific rebuttal in the form of affidavit filed by the appellant." On 10 December 2008, a notice to show cause was issued to the appellant and to its Director to explain as to why Cenvat Credit amounting to Rs. 97,990/-, which had been taken and utilized should not be demanded together with interest and why a penalty under the Cenvat Credit Rules should not be imposed. Both the appellant and its Director filed a reply on 15 December 2008 and 16 Janu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistered post on 1 December 2009. On 3 August 2011, the Superintendent, Central Excise called upon the appellant to deposit the amount outstanding in terms of the order dated 23 November 2009. The appellant thereupon filed an affidavit on 27 February 2012 before the Commissioner (Appeals) stating that the order in appeal had not been served and once again sought a certified copy thereof. The Commissioner (Appeals) by an order dated 10 December 2012 directed the appellant to furnish a certificate from the postal authorities, stating that the order has not been received. Eventually, on 20 October 2012 in pursuance of a request for disclosure of information under the Right to Information Act, a photo copy of the order in appeal was provided to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 3 of Section 35B, what is relevant is the date on which the order which is sought to be appealed against is communicated. Section 37C provides for the mode of service. Under clause a(i) a decision or order has to be served by tendering it or by sending it by registered post with acknowledgment due. Sub section 2 contains a deeming clause under which the decision or order shall be deemed to have been served on the date on which it is either tendered or delivered by post or a copy thereof is affixed. In the present case, the Tribunal has held that since the appellant was heard through its representative by the Commissioner (Appeals) after which the appellate order was passed on 23 November 2009, the appellant ought to have checked up w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was not justified in dismissing the appeal. Moreover, if an appeal is not filed within the period of three months, the Tribunal has the power to condone the delay under Sub section 5 of Section 35B if sufficient cause is shown. The question of condonation would of course, arise only, when the Tribunal comes to the conclusion that the appeal was not filed within three months from the date of communication of the order. In view of this discussion, we are of the view, that the appropriate order to pass in the appeal is to quash and set aside the order of the Tribunal dated 24 September 2013 and to restore the proceedings back to the Tribunal for consideration afresh. The Tribunal shall reconsider on remand as to whether the order of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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