Decided on January 06,2015



Manmohan Singh, Member (T) - (1.)THE appellants have come in appeal against the Orders -in - Appeal No. 16 & 17 -ST/Appl/KNP/2013 both dated 25/09/2013 Commissioner (Appeals) vide his order above did not entertain the appeals on ground of limitation. Appeals were held not maintainable. It was also referred that misleading facts were placed before Commissioner (Appeals).
(2.)APPELLANTS have filed two appeals before the Commissioner (Appeal) against the Orders -in -Original No. (1) 31/ST/Ref/AC -D -III/13 dated 5/6/2013 relating to rejection of their refund claim for Rs. 5,54,597.77/ - out of Rs. 6,11,214.77/ - and (2) 32/ST/Ref/AC -D -III/13 relating to rejection of their refund claim for Rs. 2,68,965.08/ - out of Rs. 11,88,240.08/ -. The claims were rejected as claims were not filed within the stipulated time limit despite Orders -in -Original were handed over to their representative under the Provision of Section 85. Section 85 is reproduced:
Section 85. Appeals to the [Commissioner] of Central Excise (Appeals). -

(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).

(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.


(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.]"

Appellants have contended that the company was having a separate legal entity and was run by its Board of Directors and all the Management, business operations and routine affairs of the company. They contended that all notices, letters, orders and any other documents should be communicated, sent, handed over directly to the Directors of Board of Companies or to any person who was authorized by the Board of Directors. In the absence of above procedure, no communications were to be accepted as a due communication. He further stated that Shri Gaurav Tiwari was mere an employee of the company who has been authorized to submit their documents and receipt of the order on 26/06/2013 should not be considered as a proper delivery.

(3.)ON the other hand, it is brought on record by the order of Commissioner (Appeals) that Superintendent Tax Range XXI, Customs, Central Excise & Service Tax Division III, Kanpur intimated by his office letter C. No. V (30)413/ST/Misc/R -XXI/D -III/12/Pt/6311 dated 03/09/213 that both the above said orders -in -original were received in person on 26/06/2013 by the appellants from the receipt section of the Range Office as is evident from the respective entry in the Letter Despatch Register, copy of the letter was extracted in the order itself.

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