11.03.2022 – Delay Of Around 5 Years In Filing The Appeal Condoned Subject To Cost Of Rs. 1 Lakh: CESTAT New Delhi

The Hon’ble CESTAT, Delhi vide its order dated 24 February 2022 in the matter of M/s Bhavya Creators Vs. Commissioner, Central Excise, New Delhi in Service Tax Appeal No. 50620 of 2020 while passing the miscellaneous order No. 50051-50053/ 2022 condoned the delay of 4, 5 years in filing the appeal without any justification for such delay subject to the cost of Rs. 1,00,000/- to be paid to PM Care Fund.

The Appellant filed three applications before the Hon’ble Tribunal, one application (main application) seeking condonation of delay and the second application with some additional grounds for seeking condonation of delay whereas the third application was filed for early hearing which was dismissed as premature and both the applications for condonation of delay were taken up for hearing.

Facts:

  • It was the case of the appellant wherein the impugned order dated 29.03.2014 passed by the learned Commissioner of Central Excise, Delhi-I was received by it after 5 years on 27.07.2019.
  • It was submitted on the behalf of the Appellant that from the date of receipt of the order i.e. 27.07.2019, the delay in filing the appeal is of 19 days as it was filed on 13.11.2019 and the due date for filing the appeal was 25.10.2019. Thus the present applications.

Appellant Plea:

  • The Appellant in respect of delay of 19 days submitted that the delay was on the ground that the employee of the appellant misplaced the order and thereafter left the company and it took time to trace the order.

For the period of delay from 29.03.2014 to 27.07.2019

  • The respondent passed an ex-parte order and also failed to send it by registered post which is in gross violation of Section 153 of the Custom Act and the service of the order is in violation of Order V Rule 9 of Civil Procedure Code, 1908 and Section 282 of the Income Tax Act.
  • The impugned order cannot be termed to have been served as per Section 27 of the General Clauses Act, 1897 and it came to the knowledge of the appellant only when he received an e-mail from the Range Superintendent asking to deposit the amount confirmed.
  • Thereafter the appellant through its counsel, filed a letter dated 22.07.2015 with the Range Superintendent requesting to provide the copy of impugned order and in response to that received a letter dated 04.08.2015 from the department advising to contact Superintendent (Adjudication)
  • As advised the Authorized Representative of the appellant visited the department to obtain the copy of impugned order however it was not provided by the officer stating that they could not locate the file.
  • Subsequently the Authorized Representative of the appellant sent several letters dated 01.12.2015, 28.12.2015, 21.01.2016, 09.02.2016 & 1702.2016 requesting the copy of impugned order however it was received on 27.07.2019 after the issuance of recovery notice dated 24.07.2019 to the appellants bank.
  • The appellant with the above submissions prayed for condoning the delay considering the date of service as i.e., 27.07.2019.

Department Contention:

  • The appellants contention that the order was not sent by registered post is not correct and the impugned order was not passed in violation of principle of natural justice as the appellant was sent three personal hearing notices dated 13.12.2012 & 17.12.2012 and 09.01.2013, the first personal hearing notice was returned by the postal authorities with the remark ‘left without address’, thus the second and third hearing notice was sent through a Sepoy deputed by the department to serve the notice personally upon the appellant, however on enquiring it was informed to the Sepoy that the appellant had left the premises 6 months ago and the current address is not known.
  • Thereafter a hearing notice dated 16.08.2013 was sent to the counsel (Chartered Accountant) of the appellant and that hearing notice was duly delivered however no one appeared before the Adjudicating authority and no communication in that respect was sent by the appellant or by its counsel, thus after the lapse of almost one and half year the matter was taken up for adjudication and the order was passed.
  • The impugned order was duly affixed on the notice board of the appellant as required under law therefore not in violation of Section 153 of the Custom Act, as contended by the Appellant.

Held:

  • The Hon’ble CESTAT after considering the submissions from the both sides held that the impugned order could not be served upon the appellant as the appellant left the premises and the current address of the appellant was known to the department.
  • The letters sent to appellant were sent back by the postal authorities with the remark ‘left’, thus the impugned order was affixed on the notice board of the appellant as required under Section 153 of the Custom Act.
  • The Hon’ble Bench as observed above held that there was no delay in serving the impugned order.
  • Lastly the Hon’ble Bench while concluding the matter found that there is no justification of delay of 4, 5 years in filing of the appeal however condoned the delay subject to payment of Cost of Rs. 1,00,000/ -, in order to not to deprive the appellant of an opportunity of appeal.

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