SHRI ASHISH GUPTA Vs. CCE

JUDGEMENT

(1.) UNDER the impugned order, the Commissioner (Appeals) has rejected the appeal of the appellants as time barred on the ground that it was filed after 2 and a half years after the service of the order -in -original.

(2.) IT was pleaded for the appellants that after investigation of the case, show cause notice was issued to the appellants but the same was decided by the original authority on the ground that no reply has been received from the appellants. Therefore, before the Commissioner (Appeals), they have pleaded that the order -in -original, which was passed behind their back and said to have been sent to the appellants, was never received by them till they received the letter dated 14.5.2001 by which they were asked by the Superintendent to deposit the amount of penalty, adjudicated under order -in -original dated 22.3.99. The appellants stated that they have not received any other order except Order dated 26.2.99. Therefore, there cannot be any question of recovery. The Superintendent under his letter dated 25.7.2001 informed the appellants that under Order -in -Original dated 22.3.99, penalty of Rs. 1 Lakh has been imposed on him by the adjudicating authority and copy of the said order -in -original was also sent to the appellants. Thereafter the appellants filed appeal before the Commissioner (Appeals) indicating the date of receipt of the order -in -original as 6.8.2001. The Commissioner (Appeals) after hearing the appellants passed the impugned order holding the appeal as time barred and accordingly, dismissed the appeal.

(3.) IT is pleaded now that when the order -in -original was sent to him at the address at Malout, he was not residing there but he was residing at Mandi Govindgarh and he has not received the letter. The letter of the Superintendent in 2001 was received by his uncle at Malout and then it was sent to him at Mandi Govindgarh by him. The Order dated 22.3.99 was served on him at his address at Mandi Govindgarh. Therefore, the order -in -original was sent to him at a wrong address and he has not received the order in 1999, it was received by him from the Superintendent in 2001 and accordingly, the appeal has been filed in time. It was also pleaded that for filing the appeal under Section 35 of the Central Excise Act, the appeal was required to be filed within three months from the date of communication of the decision or the order to the appellants Since the appellants had not received the order, therefore, the date of communication to him is only 6.8.2001 when he actually received the order through the Superintendent.