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M/s Mohd Akram Khan Versus Commissioner of Central Excise, Pune

2016 (8) TMI 92 - CESTAT MUMBAI

Condonation of delay in filing appeal before the Commissioner (appeals) - The demand was confirmed on 25.2.2011 and the order was dispatched by Registered Post-AD, which was received at registered address on 5.3.2011. The appellant claimed that they did not receive order and obtained a copy of order under RTI on 14.9.2013 only. Thereafter, they filed an appeal on 1.10.2013. The appeal was rejected by the Commissioner (Appeals) holding the same to be barred by limitation. - Held that:- the Order- .....

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e demanding Service Tax for the service provided by them. The appellants were registered at the address Aambey Valley, Ambavane, Lonavla, Pune- 410401. The demand was confirmed by the original adjudicating authority. The appellant filed an appeal before Commissioner (Appeals) after a long gap. The demand was confirmed on 25.2.2011 and the order was dispatched by Registered Post-AD, which was received at registered address on 5.3.2011. The appellant claimed that they did not receive order and obt .....

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deposed that he came to know about the issue of such order only on 30.7.2013. He also produced copy of the Registered Post-AD received by the Revenue in respect of the Order-in-Original. He argued that since he received the Order-in-Original only on 14.9.2013, his appeal is within the limitation. 2.1 Learned Counsel relied on decision of Hon'ble Supreme Court in the case of Saral Wire Craft Pvt. Ltd. 2015 (322) ELT 192 (SC) and on the decision of Margra Industries Ltd. 2006 (202) ELT 244 (T .....

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Learned AR relied on the decisions of Hon'ble High Court of Punjab & Haryana in the case of Greenview Land and Buildcon Ltd. 2013 (32) STR 291 (P&H) and Mohan Bottling Co. (P) Ltd. 2010 (255) ELT 321 (P&H). 4. I have gone through the rival submissions. I find that the Hon'ble Supreme Court in the case of Saral Wire Craft Pvt. Ltd. (supra) had given the decision observing as follows: - 8. Learned Counsel for the appellant has consistently relied upon Section 37C of the Act, wh .....

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n clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or .....

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without due notice to the concerned party. Every effort must be taken to meaningfully and realistically serve the affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action. The appellant justifiably submits that it was statutorily impermissible for the respondents to serve the adjudication order on a kitchen boy , who is not even a middle level officer and certainly not an authorized agent of the appellant. The version of th .....

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en lost sight of by the authorities below as it has inevitably led to a miscarriage of justice. The Inspector of the Department should have meticulously followed and obeyed the mandate of the statute and tendered the Adjudication Order either on the party on whom it was intended or on its authorized agent and on one else. It is not the respondents case that Shri Sanjay was the authorized agent. Even before us, despite several opportunities given, the respondents have failed to file their respons .....

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in this case. 4.1 In the case of Margra Industries (supra), the Larger Bench of the Tribunal has observed as follows: - In taxing matters like Customs and Central Excise there would be no scope for the presumption, as it would deprive the assessee s right to agitate the matter. We find that this is not the intention of the legislature in as much that, both the sections have sub-sections which contemplate the alternate mode of service of the order/ decision/ summon/ notice enshrined in the failu .....

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of fact recorded by the 1st Appellate Authority as well as the Tribunal. In view of the documentary evidence, both the Appellate Authorities have rightly come to the conclusion that the order dated 2-1-2008 was dispatched by registered post and the same was delivered to the petitioner-company on 3-1-2008. The delivery of the said order has not only been presumed but it has also been proved from the certificate of the Postal Department duly indicating that the said order was delivered to the ass .....

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d been filed again stating that they had not received the order dated 2-1-2008 any time before 14-8-2008. Thus, it cannot be taken as an evidence to rebut the evidence led by the Revenue department which clearly established that the registered letter through which the order dated 2-1-2008 was sent was duly delivered to the petitioner-company on 3-1-2008. In this regard, the Tribunal has relied upon the judgment of this Court in the case of CCE, Ludhiana v. Mohan Bottling Co. (P) Ltd., 2010 (255) .....

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by post or a copy thereof is affixed in the manner provided under sub-section (1) by affixing the same to some conspicuous part of the factory or warehouse or other place of business. In the present case, the assessee has not alleged even a single word that the envelop containing the order was not having the correct address. 7. . 8. The Apex Court in V. Raja Kumari. v. P. Subbarama Naidu and Another, AIR 2005 SC 109, in paras 13 and 14 has held as under :- 13. Here the notice is returned as addr .....

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