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TMI Blog2023 (12) TMI 372X X X X Extracts X X X X X X X X Extracts X X X X ..... ter due process of law, the original authority confirmed the demand of Rs.24,01,371/- for the above period along with interest and imposed equal penalty. The appellant preferred appeals before Commissioner (Appeals) who vide the impugned order rejected the appeals on the ground of time-bar. Hence the appellant is before this Tribunal. 3. The learned counsel Smt. G. Vardini Karthik appeared for the appellant and Shri N. Satyanarayanan, learned AR appeared for the department. 3.1 The learned counsel for the appellant submitted that no objection was raised by the Commissioner (Appeals) on the limitation aspect at the time of their filing the appeals, which was entertained with 27.09.2021 as the date of Service of Orders and no defect notice for non-filing of condonation of delay was ever raised. Hence the impugned order needs to be set aside. She has further handed over a chart containing the sequence of events of the case as under. DATE SEQUENCE OF EVENTS DECLARATION AS SICK INDUSTRIES 17.11.2015 Form A u/s 15(1) of Sick Industries Companies (Special Provisions) Act, 1985, before BIFR for rehabilitation was filed by Appellant and registered in the Board as Case No. 157 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the matter he had prejudiced their case as they had a strong case on merits. She stated that although the department purports to have despatched the SCN and Order-in-originals to them as stated in departments letter C No I/10/09/2018-Legal dated 27/09/2021, they had not received the said documents and became aware of the same only after they received a recovery notice dated 14/06/2021. Their unit had closed its operations on 04/11/2015 and they had approached BIFR for rehabilitation, hence perhaps no documents sent by the Department were received by them. They had informed the Department about reference to BIFR vide their letter dated 23/11/2015 about the same. They then filed Writ Petition in WP No. 16061/2018 before the Hon'ble Jurisdictional High Court who directed them (petitioner) to approach the competent authorities. Accordingly, they requested the Department to furnish the copies of the Order in Originals and Show cause notices on 02.09.2021. In response the office of Commissioner of GST and CE, Pondicherry, issued Certified Copy of SCN and O-I-O on 27.09.2021 enabling the appellant to prefer appeal on 15.11.2021. The appeal was hence not time barred. They had a strong ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for filing an appeal is legally disputed, is not to take a decision on their own, but to place the matter before the concerned Authority for a decision. To that extent the decision of the Registry cannot be faulted. The question is whether the Commissioner (Appeals) erred in not issuing a notice to the Appellant on the issue of time bar before hearing them in the matter. 5.2 I find that the question of time bar is a mixed question of fact and law. The Commissioner (Appeals) was faced with an issue which at first involves the ascertainment of facts on the evidence adduced by the Appellant. He would then have to determine the right of the Appellant on an application of the appropriate provision of law to the facts as ascertained. Hence in the impugned case the inference from facts resulted in a question of law, which was answered. It would not have been possible for the Commissioner (Appeals) to have come to a prima facie conclusion that the matter was time barred till the matter was heard out on facts. 5.3 Further the Appellant was aware of the statutory delay in filing the appeal as between the dates of the order and the date on which they had filed the appeals, for whatever reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any summons or notice issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in 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 notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No V/Ch.72/15/ 02/2011 dated 21/06/2011 as per Postal Acknowledgement Card and has also requested for an adjournment of personal hearing vide their letter dated 14/12/2011. The O-I-O in the case dated 16/03/2012 was also received by them as per the Postal Acknowledgement Card. None of these facts have been contested by the Appellant. Hence the Appellant has not been truthful by claiming non-receipt of orders and has not come before the Tribunal with clean hands. 6.3 The record of finding of the learned Commissioner (Appeals) in this regard is relevant. Paras 7.3 to 7.5(b) of the impugned order is reproduced below. "7.3 At this juncture, it is pertinent to mention that on query during the personal hearing about their claim of non-receipt of SCNs and Orders, the appellant informed that the factory was closed and the same could have been served by the postal department but they were not sure as to who received the same and they came to know only after receipt of recovery notice. On specific query, out during the personal hearing as to how non-delivery of SCNs and orders can be substantiated when the proof of dispatch by registered A/D and acknowledgments for delivery as detailed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een appellant and the 'authorised occupant' present at material time at premises who received such documents to ensure that such documents were brought to the notice of appellant. Failure to do so on part of appellant cannot become a valid reason to condone delay for filing appeal. From the discussions above it is found as under : (i) While the letter purportedly given by the Appellant regarding having approached BIFR has no despatch details or acknowledgement of receipt by the Department, they are demanding postal acknowledgement from the Department for the documents despatched to them which has been supplied. (ii) They have not formally given the Department any alternate address for service of documents/ notice etc (iii) Postal acknowledgement for the receipt of some of the documents has been supplied by the Department to the Appellant. (iv) All the 5 Show Cause Notices have been issued to the Appellant between 21/06/2011 and 15/06/2015 much before the closure of the unit from 05/11/2015. (v) Although the whole issue arose from an Audit visit and objection raised by the Audit team, the Appellant has not shown due diligence to follow up on the matter with the Department ..... X X X X Extracts X X X X X X X X Extracts X X X X
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