CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRBUNAL WEST ZONAL BENCH, MUMBAI
APPELLANT: BHARATH PETRLEUM CORPORATION LTD
RESPONDENT: CCEX, NASHIK
CORAM : HONBLE S/SHRI P.G. CHACKO, MEMBER [JUDICIAL] &
S.K. GAULE, MEMBER [TECH.]
FINAL ORDER No. : A/177/2010/EB/C II DATED : 19.05.3020
PER SHRI P.G. CHACKO, MEMBER [J] :-
This appeal was filed by M/s. BHARAT PETROLEUM CORPORATION LTD., a Central PSU, which has obtained the requisite clearance from the ‘Committee on Disputes”.
Against order-in-original No. 43/2004 dated 19.08.2004 passed by the Dy. Commissioner of Central Excise, Nasik III Division, the appellant filed an appeal with the Commissiner of Central Excise (Appeals) on 02/02/2005. In that appeal, they also filed an application for condonation of delay. In that application, they submitted that they had not received the order in original on 23.08.2004 as claimed by the department. They submitted that they received the order for the first time on 20.122004 and, therefore, the appeal filed by them was within the period of limitation prescribed under Section 35 of the Central Excise Act. The appellate authority rejected the above plea and, after a perusal of the records, found that the order in original had been actually delivered to the party on 23/08/2004 itself. Learned Commissioner (Appeals) found that the delay of the appeal filed by the party was in excess of the period of delay (30 days) condonable by her under the proviso to Section 35 ibid. In the result, the appeal filed by BPCL came to be dismissed as time-barred. Hence the present appeal of BPCL.
The following records, some of them filed by the appellants counsel and others by the JCDR, are before us : -
Letter dated 22/12/2004 of BPCL addressed to the Sr. Superintendent of Post Offices, Nashik Division. By this letter the appellant requested for a confirmation as to delivery of the registered postal article No. 5090 dated 20.08.2004.
Lettter dated 23/12/2004 of the appellant addressed to the Post Master, Manmad. In this lette also, the appellant sought similar information.
Xerox copy of postal receipt of registered article no. 5090 dated 20/08/2004 issued by Manmad Post Office.
Reply given by the Sr. Superindent of Post Offices of Nashik Division to the appellants letter cited at serial no. (i) . This reply reads thus : -
” with reference to your application, inquiries made revealed that the regstered letter was delivered to the addressee on 20.08.2004.
Xerox copy of an excerpt from Manmad Post offices delivery regster. This document indcated that the registered postal article No. 5090 dated 20/08/2004 addressed to BPCL was delivered to them on 23/08/2004.
Xerox copy of page 1 of order in original no. 43/2004 dated 19/08/2004 ith BPCL dated seal indicating receipt of the order on 20/12/2004.
Copy of letter dated 20/12/2004 of the Superintendent of Central Excise to BPCL, which is the covering letter for a copy of the order in original supplied to the company.
On a perusl of the above records, it has become crustal clear that a copy of the order in original was duly delivered to BPCL, Manmad on 23/08/2004. The objections raised by the Counsel for the appellant with reference to the documents filed by the JCDR are not tenable. Delivery of the order in original to the appellant on 23/08/2004 is a proven fact. As rightly pointed out by the Commissioner (Appeals) the appeal filed by the Company against the order in original ws too belated for the appellate authoirty for cndnation of delay. The appellate authority was competent to condone delay of upto 30 days only under the proviso to Section 35 of the Act. It was not competent to condone any delay in excess of that, as held by the High Court in the case of DELTA IMPEX vs CMMISSIONER OF CUSTOMS
[2004-173-ELT-449-DEL].
In the result the appelate Commissioners order is sustained and this appeal is dismissed.
[DICTATED IN COURT]
[the full text of this judgement can be viewed in http://www.taesinindia.com and the citation is taxind_2010_wzb_eb_A177]
EDITOR’s OBSERVATIONS: -
After reading this judgement of the CESTAT, Mumbai Bench, any reader is lkely to raise the following questions within hmself: -
whether all the records taken as evidences are not clear enough for the appellant company to conclude , even before deciding to file an appeal, that their appeal would be squarely hit by the time-bar factor?
whether all these records could not be brought on record by the adjudicating authority, while passing the order in original [the first quasi-judicial order] to squarely settle the issue, without any further grounds available for the appellant company to appeal to the next authority?
Whether the appellant company could produce any additional documentary evidences before the Committee of Disputes, the High powered committee appointed by the Cabinet Secretariat, to disprove that the Commissioner [Apeals] erred in dismissing their appeal as time-barred?
It is obvious from the Tribunal order that the appellant company could not produce such records, ecept protesting / raising objections with reference to the documents filed by the JCDR, which the Tribunal found as UNTENABLE.
Whether the appellant companywas justified to take away, in this manner, the valuable time of the Tribunal, especially when they had no solid grounds to appeal?
Perhaps the time is fast approachng for the Cabinet Secretariat to review the guidelines provided to the PSU companies earlier, with further directions that their appeals should be scrutinised at the highest level in their organisation, befoe deciding even to seek the valuable time of the High Powered Committee, in order to get the due clearance for an appeal before the Tribunal.
CESTAT ORDER
VENKATRAMAN RAGGHUPATHY, Web admin.

[SOURCE : PAGES BOOKSTORES.COM]
CESTAT ORDERS CONDONATION OF DELAY, SECTION 35F