SREE GAYATHRI Vs. COMMISSIONER OF CENTRAL EXCISE, TIRUNELVELI

JUDGEMENT

(1.) AFTER hearing both sides, we find that the appeal may be decided at the stage of stay petition hearing. Accordingly, after disposing the stay application, we proceed to hear the appeal. After hearing both sides and on perusal of the records, we find that the appeal was dismissed by the Commissioner (Appeals) as time -barred. It is seen from the impugned order, that the adjudication order was passed on 29 -3 -2011 and dispatched through RPAD on 30 -3 -2011. The applicant filed the appeal before the Commissioner (Appeals) on 13 -1 -2012.

(2.) THE main contention of the learned counsel is that they have not received the adjudication order. She fairly submits that during the relevant period their administrative office was shifted and started functioning at Cochin. On a query from the Bench, the learned counsel submits that the shifting of administrative office was not intimated to the Department. The learned counsel submits that there is a letter from the house owner stating that they have vacated the premises in the month of January 2011. It is also supported by the letter of the Telephone Department that they have surrendered the telephone line during the month of February 2011. She relied upon the decision of the Tribunal in the case of Sunrise Industrial Corporation v. Commissioner of Customs - : 2013 (29) S.T.R. 447 : 2012 (280) E.L.T. 148 (T). In that case, the Tribunal held that in the absence of proof of delivery, dispatch of order by speed post does not mean communication of the order. She also relied upon the decision of the Larger Bench of the Tribunal in the case of Margha Industries Ltd. v. Commissioner of Customs, New Delhi -, 2006 (202) E.L.T. 244, wherein it was held that the presumption of delivery of order or summons or decision or notice, without the delivery receipt of post office, cannot be accepted. She submits that the Department has not placed any proof at all by the postal authorities that the order was served on the addressee.

(3.) WE find that there is no dispute that the impugned order was delivered to the address of the appellant as mentioned in the adjudication order. Section 153 of the Customs Act, 1962 reads as follows: -