Delay condonation - It cannot be presumed that assessee would have received order in 10 days from date of despatch by RPAD - Order of CESTAT set aside and matter remanded - HC
By TIOL News Service
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AHMEDABAD, DEC 16, 2016: BEING aggrieved and dissatisfied with OIA dated 24.07.2012, the appellant preferred appeal before the Commissioner (Appeals) on 23.11.2012. According to the appellant, they received the copy of OIO on 27.08.2012. Still there was some delay and therefore, along with appeal, appellant submitted application requesting to condone the delay. However, Commissioner (Appeals) did not accept the case on behalf of the appellant that they received OIO on 27.08.2012 and by drawing presumption that as OIO was dispatched on 25.07.2012, it is to be presumed that the appellant himself have received the order within maximum period of 10 days and therefore, having found that appeal has been preferred beyond the normal + condonation period prescribed in the law and as per provisions of Section 35 of the Central Excise Act and Rules made in this regard, the appellant authority is not vested with the power to condone the delay beyond 60 days + 30 days. Consequently, the Commissioner (Appeals) dismissed the appeal on the ground of limitation. The Tribunal has also confirmed the OIA.
After hearing both sides, the High Court held:
+ The Commissioner (Appeals) did not accept the case on behalf of the appellant that they received OIA on 27.08.2012 merely on presumption and assumption and on surmises and conjectures. The Commissioner (Appeals) has observed that as the OIO was dispatched by Department and sent through RPAD on 25.07.2012 and therefore, considering the period of maximum 10 days as reasonable period for reaching OIO from the date of dispatch from the postal department to the factory of the appellant, the OIO ought to have been reached the appellant latest by 04.08.2012. Therefore, the Commissioner (Appeals) treated and considered the starting point of limitation from 04.08.2012. The aforesaid finding cannot be sustained for the simple reason that the starting point of limitation is considered merely on presumption and assumption. The Commissioner (Appeals) has considered the date of dispatched of the OIO but has not considered in fact on which date the appellant received the copy of OIO. If according to department OIO was sent through RPAD, in that case, department must have received acknowledgment receipt with the signature and seal of the company. The Commissioner (Appeals) could have and ought to have called for the acknowledgment receipt of the RPAD to ascertain on which date the appellant / assessee received the copy of the OIO. The acknowledgment receipt of the RPAD is always with the department. Therefore, department was required to produce the cogent reason to prove the only date of receipt of OIO by the appellant assessee. Once it was the specific case on behalf of the appellant - assessee that they received the copy of the OIO on 27.08.2012 and if either the department and / or Commissioner (Appeals) were disputing the same, thereafter the duty is cast upon them to disprove the same and to prove that OIO was not served on 27.08.2012 but was served earlier than that and it could have been proved by producing the acknowledgment receipt of the RPAD. However, on assumption and presumption it could not have been presumed that OIO ought to have reached the appellant latest by 04.08.2012. On the premise that period of maximum 10 days has to be considered as reasonable period for reaching OIO from the date of dispatch from the postal department to the factory of the premise.
+ Under the circumstances, the impugned order passed by the Commissioner (Appeals) confirmed by the Tribunal cannot be sustained and the matter is required to be remanded to the Commissioner (Appeals) to pass appropriate order on the aspect of condonation of delay afresh.
(See 2016-TIOL-3025-HC-AHM-CX)
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