SKYRON OVERSEAS Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS petition has been preferred, seeking the following substantive reliefs:

(2.) VIDE Order -in -Original dated 7th August 2002, demand of duty of Rs. 4,37,377/ - along with penalty of equivalent amount and interest came to be confirmed against the Petitioner. Against the said order the Petitioner preferred appeal before Commissioner (Appeals) along with stay application on 21st September 2004. Vide order dated 17th January, 2005, the appeal came to be dismissed as not maintainable on the ground that the same had not been filed within the statutory period of limitation and that Commissioner (Appeals) does not have power to condone the period of delay beyond 30 days of the expiry of 60 days as provided under z(the Act). The Petitioner carried the matter in appeal before the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal), which came to be dismissed vide order dated 6th September 2005, on the ground that the Tribunal cannot go into the merits of the appeal when the appeal has been dismissed by the lower appellate authority on the ground of the same being time barred. Subsequently, it appears that the Petitioner filed an application for restoration of appeal which also came to be dismissed on 21st February 2006. Thereafter, after a period of more than three years since the date of dismissal of the restoration application, the Petitioner again moved an application before the Tribunal for rectification of appeal, which came to be rejected vide the impugned order dated 7th August 2009. Being aggrieved, the Petitioner has moved the present petition seeking the reliefs noted hereinabove.

(3.) ASSAILING the impugned orders, the learned advocate for the Petitioner submitted that the Order -in -Original was not served upon the Petitioner till 13 -8 -2004. That in its application for condonation of delay made before Commissioner (Appeals) it was categorically explained that it was only when the Superintendent of Central Excise initiated recovery proceedings vide letter dated 13 -8 -2004 hat the Petitioner came to know about the order having been passed by the Additional Commissioner. Inviting attention to the order of Commissioner (Appeals) it was submitted that Commissioner (Appeals) has observed that the Order -in -Original was dispatched on 13 -9 -2002; that there is nothing on record which may suggest that the Order -in -Original was returned to the Central Excise office as undelivered; and that the Petitioner had not brought any other evidence on record to rebut the above evidence; whereas on the contrary it is the Respondents who have not produced any evidence to show that the Order -in -Original had in fact been served on the Petitioner. In absence of service at the relevant point of time, the order -in -original was received by the Petitioner only on 13 -8 -2004, hence, the appeal which was filed on 21 -9 -2004 was well within the prescribed period of limitation and as such Commissioner (appeals) was not justified in rejecting the appeal on the ground of the same being time barred. It was urged that the Tribunal having failed to appreciate the case of the Petitioner in proper perspective, the petition deserves consideration and interim relief as prayed for is required to be granted,