M/s Raj Construction Co. vs Commissioner (Appeals) Of Central Excise

This appeal has been filed to assail the order dated 31.05.2011 passed by the Commissioner (Appeals) by which the appeal filed by the appellant to

assail the order dated 26.10.2009 passed by Assistant Commissioner rejecting the refund claim of Rs.11,42,999/- submitted under section 11B of the

Central Excise Act, 1944, as made applicable to service tax matters by virtue of Section 83, the Finance Act. , has been dismissed for the sole reason

that the appeal was filed beyond the period prescribed under section 85 (3) of the Finance Act.

Section 85 of the Finance Act deals with Appeals to the Commissioner of Central Excise (Appeals) and sub-section (3) of Section 85, which is

relevant for the purposes of this appeal, is reproduced here below :-

“85(3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority,

relating to service tax, interest or penalty under this Chapter

PROVIDED that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause

from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three monthsâ€​.

In the present case, the appellant stated before the Commissioner (Appeals) that the order dated 26.10.2009 passed by the Adjudicating Authority

was received on 14.11.2009 and the appeal was actually filed on 13.05.2010 with a delay of about 88 days. It was further stated in the application filed

for condoning the delay in filing the appeal that the delay of 88 days may be condoned. The relevant portion of the delay condonation application is

reproduced below:-

“The appellant received the Adjudication Order on 14.11.2009. Thereafter they sent the file for appeal to Consultant at Delhi for

opinion. Thereafter our Consultant from Delhi informed us that we are not covered under Service Tax Law and accordingly advised us to

represent to Chief Commissioner, Jaipur. Our Consultant were supposed to prepare representation. Thereafter on enquiry again on

01/05/2010, it was informed to us that the said representation has not been prepared. Thereafter on 04/05/2010, the range office informed

us that there is no appeal lying with the Commissioner (Appeals) Jaipur and we required to deposit the demand. Immediately the appellant

approached to other advocate and prepared the appeal and now filing the appeal delayed by 88 days. This delay is due to mis-guidance.

Kindly condone the delay by 88 days as this delay was due to bonafide belief.â€​

The Commissioner (Appeals), by order dated 31 March 2011, rejected the appeal for the reason that it was filed even beyond the further period of

three months after the expiry of the normal period of three months. It would be appropriate to reproduce the observations made by Commissioner

(Appeals) in this regard :-

“10. I have carefully gone through the case records, grounds of appeal/stay application/application for condonation of delay in filing of

appeal, records of personal hearing and the case laws relied upon by the appellant. Firstly I take up the application filed by the appellant

on limitation aspect in filing of the instant appeal. The appellant in appeal memorandum has contended that Order-in-Original No.

31/ST/Ref/2009 which was passed on 26.10.09 has been received by only on 14.11.09 and hence appeal was filed on 13.05.2010 with an

application for condonation of delay of 88 days. On perusal of appeal papers filed by the appellant. I find that the impugned order has been

passed on 26.10.2009 against which this appeal has been filed on 13.05.2010 and there is apparent delay of more three months in filing of

this appeal for which application for condonation has been filed before me.

The matter was also got enquired from the jurisdictional Assistant Commissioner who vide his letter C. No. V (STD)

18/3/Ref.RCC/09/1717 dated 24.03.2011 has informed that Order-in-Original No. 31/ST/Ref/2009 dated 26.10.2009 was dispatched to the

appellant through registered post on 26.10.2009 which has not received back undelivered. In this case a registered letter has been served

in Jaipur itself and the same has been received by the appellant undisputedly. In normal course this letter must have been received in the

first week of November 2011 and the onus to prove that the same has not been received in normal period is shifted on appellant. However

the appellant has neither given any specific reason for not receiving the impugned order in normal period and nor any documentary proof

of receipt thereof only on 24.11.2009 as contended by the appellant has been furnished. The appellant contention of receiving the impugned

order on 24.11.2009 without submitting any documentary evidence to this effect appears only to cover up their case under the condonation

limit of three months and accordingly I reject the sameâ€​.

(emphasis supplied)

We have heard Ms. Priyanka Goel, learned Counsel for the appellant and Shri Arun Kumar Thapliyal learned Authorized Representative for the

Department.

Learned Counsel for the appellant submitted that the order dated 26.10.2009 was actually received by the appellant only on 14.11.2009, but the

Commissioner (Appeals) disbelieved this fact solely for the reason that in normal course this letter should have been received by the appellant in the

first week of November 2009. The submission advanced is that a presumption has been drawn by the Commissioner (Appeals) without even seeking a

report from the post office regarding delivery of the registered envelop upon the appellant. Learned Counsel, therefore, submitted that since the appeal

was filed within the extended period of three months after the expiry of the normal period of three months, the Commissioner (Appeals) was obliged in

law to examine whether the appellant was prevented by sufficient cause from presenting the appeal within the extended period of three months and if

that was examined, there would be no doubts that the appellant had sufficiently explained why the appellant could not file the appeal within the

stipulated period of three months.

Shri Arun Kumar Thapliyal, learned Authorized Representative for the Department has, however, supported the impugned order and has stated that

it was for the appellant to substantiate by evidence as to when the order was actually received. This having not been done, no fault can be found with

the order passed by the Commissioner (Appeals).

We have considered submissions advanced by learned counsel of the appellant and the learned Authorized Representative appearing for the

Department.

The appellant had contended before the Commissioner (Appeals) that the order dated 26.10.2009 was actually received by the appellant on

14.11.2009. If the Commissioner (Appeals) had any doubts about the date on which the said order was actually received by the appellant, then it was

for the Commissioner (Appeals) to have made proper enquiries from the post office to dispel this doubt, but that was not done and only a presumption

has been drawn that since the order was dispatched on 26.10.2009 by registered post, “In normal course this letter must have been received in the

first week of November 2009â€​.

We fail to understand how such a presumption could have been drawn by the Commissioner (Appeals). In the absence of any contrary evidence

before the Commissioner (Appeals), the date indicated by the appellant regarding receipt of the order should have been accepted by the Commissioner

(Appeals). If this date 14.11.2009 [wrongly mentioned as 14.11.2011 by the Commissioner (Appeals)] is treated as a date on which the order dated

26.10.2009 was received by the appellant, then the appeal was filed within the extended period of three months contemplated and the proviso to sub-

section (3) of Section 85 of the Finance Act.

Learned Counsel for the appellant urged that instead of remitting the matter to the Commissioner (Appeals) for deciding whether sufficient cause

for condoning the delay existed, the Bench may decide this matter as the dispute is of the year 2009.

In the facts of the case, we consider it appropriate to examine the delay condonation application filed by the appellant before the Commissioner

(Appeals) with the appeal.

The averments made in the said application have been reproduced in the third paragraph of this order. It has been stated that initially the appellant

was advised to file a representation before the Chief Commissioner against the order dated 26.10.2009, but subsequently, the counsel who was

contacted, after the Range Officer informed the appellant that no appeal had been filed before the Commissioner (Appeals), advised that an appeal

was required to be filed before the Commissioner (Appeals), that an appeal was filed on 13.05.2010.

We are satisfied from the averments made in the delay condonation application that the appellant was prevented by sufficient cause from filing the

appeal before the Commissioner (Appeals) within a period of three months from the date of receipt of the order. The delay, is, accordingly condoned

and the appeal shall be treated to have been filed within time before the Commissioner (Appeals).

The order dated 31.05.2011 passed by the Commissioner (Appeals) is, accordingly, set aside and the matter is remitted to the Commissioner

(Appeals) to decide the appeal on merits as expeditiously as is possible since the Adjudicating Authority had passed the order in 2009. The appeal is,

accordingly, allowed to the extent indicated above.