VISHKARMA AGRICULTURE INDUSTRIES Vs. UNION OF INDIA

JUDGEMENT

(1.) Present Writ Petition under Article 226 of the Constitution of India has been filed seeking quashing of Order-in-Appeal dated 03.01.2017 (Annexure P-11) whereby Commissioner (A) has dismissed Appeal of the Petitioner on the ground of delay. The Petitioner in alternative has further sought quashing of Order-in- Original dated 21.03.2016 (P-8) whereby demand of Central Excise Duty alongwith penalty was confirmed.

(2.) The Petitioner is engaged in the manufacture of paddy parboiling and paddy drying plants. The Respondent issued a Show Cause Notice dated 07.01.2015 (P-5) proposing classification of par boiling plant under Chapter Heading 84198990 and demanding Central Excise Duty amounting to Rs.44,44,488/- for the period December 2009 to March 2014. Another notice dated 21.04.2015 (P-6) was issued raising demand of Rs.20,30,571/- for the period April-July 2014. The Respondent No. 2-Additional Commissioner vide common order dated 21.03.2016 (P-8) confirmed both the demands and further imposed penalty under Section 11AC of the Act read with Rule 25 of the Central Excise Rules, 2002. As per Section 35 of the Central Excise Act, 1944 and Appeal against an order can be filed within 60 days and Appellate Authority can condone delay upto 30 days.

(3.) The Petitioner received copy of order on 26.03.2018 (P- 8), and through courier on 18.05.2016 after making mandatory pre- deposit of 7.5% of duty sent an Appeal to the office of Commissioner (A)-Respondent No. 3. The Petitioner sent Appeal through courier well within limitation period, however, Courier Company could not deliver copy of Appeal in the office of Commissioner (A) and on 07.07.2016 returned back courier to Counsel of the Petitioner. The Proprietor of courier agency has furnished an affidavit dated 08.07.2016 (P-9) disclosing fact of receipt of courier, its non-delivery and return to Counsel of the Petitioner. The Petitioner within 4 days from the date of return of courier alongwith application seeking Condonation of Delay filed an Appeal before Commissioner (A) who vide impugned order dated 03.01.2017 (P-11) has dismissed the appeal on the ground of delay. Commissioner (A) has held that delay cannot be condoned so Appeal is liable to be dismissed.