The Chandigarh bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that appeal is not barred by limitation in the absence of material evidence to prove the order passed date and served date as same.
M/s Johnsons Controls-Hitachi, the appellant was engaged in the manufacture of ‘Air Conditioner’ falling under Tariff Entry 8415 of the 1st Schedule to Central Excise Tariff Act, 1985. The appellant was claiming the benefit of exemption Notification No. 56/2002-CE dated 14.11.2002 w.e.f. 28.04.2005 by availing the facility of refund by way of cash, of duty paid/value addition as prescribed under the notification.
The appellant filed a refund claim of Rs. 12,89,370/- on account of value addition deductions for the period of June, July and September 2014. The range officer vide Order-In-Original rejected the said refund.
The appellant filed the appeal on 30.07.2019 before the Commissioner (Appeals) who without verifying the records merely relying on the report of the original authority dismissed the appeal vide impugned order on the ground that the appeal has been filed beyond the statutory period of 90 days.
The appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the Commissioner (Appeals) has wrongly dismissed the appeal being barred by limitation by merely relying on the report of the original authority that the order dated 25.03.2019 was served upon the appellant on 25.03.2019 itself.
He has filed the affidavit of Jugal Kishore Sharma who was the authorized signatory of the appellant stating on oath that the order dated 25.03.2019 was received by hand on 18.06.2019 and the same was communicated to the company on 22.06.2019 thereafter the appeal was filed within the statutory period as prescribed under Section 35 of Central Excise Act, 1944.
It was observed that the respondent has not been able to produce any material conclusively showing that the order dated 25.03.2019 was served on the same day i.e. 25.03.2019 itself. The dispatch register produced by the respondent only shows the dispatch and there is no material on record showing that the appellant was served the copy of the order on 25.03.2019 itself.
A single member comprising of Mr S S Garg,(Judicial) has held that the dismissal of the appeal on limitation is not sustainable in law and set aside the impugned order and remanded the case back to the Commissioner (Appeal) with the direction to decide the appeal on merits.
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