QUALITY CONSTRUCTIONS Vs. COMMISSIONER OF SERVICE TAX, BANGALORE

JUDGEMENT

(1.) THIS application by the appellant seeks condonation of the delay of 260 days involved in the filing of the appeal. The impugned order was passed on 18 -12 -2009. A letter dated 23 -8 -2010 of the Superintendent of Central Excise (Appeals) in the office of the Commissioner of Central Excise (Appeals), addressed to the counsel for the appellant, indicates that the order was sent by Registered Post (Acknowledgement Due) bearing No. 3245 dated 24 -12 -2009 to the party at the address furnished by them and that the postal article was returned undelivered on 8 -1 -2010. The postmans remark (No such person in this address) noted in this letter indicates that the appellant was not available at the address given in their memorandum of appeal filed with the Commissioner (Appeals). This letter dated 23 -8 -2010 further indicates that another copy of the Order -in -Appeal was delivered to the appellants counsel which was received by the counsel on 25 -8 -2010. The appeal was filed with this Tribunal on 9 -9 -2010 with a delay of 260 days reckoned with reference to the date of dispatch (24 -12 -2009) of the original copy of the impugned order.

(2.) THE ld. Counsel for the appellant has made two fold submissions. Firstly, it is submitted that no copy of the impugned order was supplied to the appellants counsel by the Commissioner (Appeals), which is said to be a deviation from the normal practice. Secondly, it is submitted that the modes of service of order were not sequentially resorted to by the appellate authority in this case under Section 37C of the Central Excise Act as applicable to service tax cases. A copy of the order was sent by Registered Post (AD) as per the first mode but the dispatch returned undelivered. The appellate authority should have, then, taken steps to ensure that a copy of the order was affixed on a conspicuous part of the premises of the appellant, failing which, as per the third mode of service, a copy of the order should have been affixed on the notice board of the appellate authority itself. The counsel submits that no such steps were taken in this regard. He prays for condonation of the delay of the appeal, relying on the Tribunals Larger Bench decision in the case of Margra Industries Ltd. v. CC, New Delhi [2008 (10) S.T.R. 81 (Tri. - LB) = 2006 (202) E.L.T. 244 (Tribunal -LB)].

(3.) THE ld. Jt. CDR submits that it was obligatory for the appellant to declare their change of address to the Commissioner (Appeals). Though the unit was closed during the pendency of the appeal with the Commissioner (Appeals), the change of address was not intimated by the party. In the circumstances, according to the ld. Jt. CDR, the present application for condonation of delay of the appeal is only liable to be dismissed. In this connection, reliance is placed on Sunbeam Garments Pvt. Ltd. v. CC [2010 (255) E.L.T. 383 (Guj.) = 2010 (20) S.T.R. 568 (Guj.)]. In answer to a query from the Bench, the ld. Jt. CDR concedes that, in this case, no copy of the appellate Commissioners order was affixed either at the premises of the appellant or on the notice board of the appellate authority.