FIL INDUSTRIES LIMITED Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THIS appeal by the assessee is directed against the order of the Commissioner dismissing the appellant's appeal summarily as time barred. The submission of the Counsel for the appellant is that were the appellate authority is of the opinion that the appeal is time barred and intends to dismiss the appeal as such, he is required to give opportunity of hearing, and since no such opportunity was given to the appellant in the instant case, the order is fit to be set -aside and matter remanded to the Commissioner for fresh consideration on the point of limitation. It is submitted that in another case involving similar dispute, on merit the Commissioner granted relief to the party.

(2.) THE appeal in question had arisen from the order -in -original of the Additional Commissioner dated 29 -6 -2006. The case of the appellant is that copy of the order was delivered to them only on 28 -3 -2007 and, therefore, the appeal preferred by them on 18 -4 -2007 was well within the period of limitation and it could not be dismissed as time barred. From the order of the Commissioner, it appears that considering the long gap between date of the order -in -original i.e. 29 -6 -2006 and the alleged date of service of a copy thereof, he called for report from the Additional Commissioner about the date of service and it transpired from the report submitted by the Superintendent that copy of the order had been delivered to the appellant by registered post on 4 -7 -2006. The Commissioner noted that the delay being of 228 days in filing the appeal, it was beyond his power to condone the delay beyond thirty days after expiry of the period of sixty days which is the prescribed period for filing appeal.

(3.) SECTION 37C of the Central Excise Act provides for the manner of service of decisions, orders, summons etc. It lays down that any decision or order etc. shall be served on the person for whom it is intended by tendering the decision, order, summons or notice or sending it by registered post with acknowledgement due. If the decision, order, summons etc. cannot be served in the above manner, a copy thereof shall be affixed at some conspicuous pan of the factory or warehouse or other place of business or usual place of residence of the person. If that too is not possible, service shall be effected by affixing a copy of the decision, order etc. on the notice board of the officer or authority who or which had passed such decision or order or issued such summons or notice. In the facts of the case, the decision in the case of Margra Industries (supra) lends no help to the appellant. From the order of the Commissioner it appears that the Sub -Post Master, Srinagar Airport by letter No. CE -3/792/SK Airport 2006 -07 dated 23 -8 -2007 informed the Department that registered letter No. 792 dated 29 -6 -2006 (by which copy of the order -in -original had been sent to the appellant) was delivered to the addressee on 4 -7 -2006. There is no reason to disbelieve the correctness of the said report. There was thus adequate proof service of the copy of the order. It may be mentioned that service of copy of the order on 28 -3 -2007, relied upon by the appellant, was in response to their letter that copy of the order had not been served. That apparently was the second time service of the order.