Custom, Excise & Service Tax Tribunal
Ge India Industrial Private Ltd vs Commissioner Of Customs … on 10 October, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI Appeal No. C/42627/2014 [Arising out of Order-in-Appeal C.Cus.No.1585/2014 dt. 28.08.2014 passed by the Commissioner of Customs (Appeals), Chennai] GE India Industrial Private Ltd. Appellant Versus Commissioner of Customs (Seaport-Export) Chennai Respondent
Shri P. Sridharan, Advocate
For the Appellant
Shri B. Balamurugan, AC (AR)
For the Respondent
Honble Ms. Sulekha Beevi C.S. Member (Judicial) Honble Shri Madhu Mohan Damodhar, Member (Technical) Date of Hearing : 03.10.2017 Date of Pronouncement:10.10.2017 FINAL ORDER No. 42311 / 2017 Per Bench
The appellant is involved in the trading and assembly of Wind Operated Electricity Generator (WOEG). They imported various products of WOEG through Chennai Seaport on payment of customs duties including 4% Special Additional Duty (SAD). They filed refund claim for SAD on 3.11.2010. Appellants were issued with deficiency memo dt.19.04.2011 calling for to submit documents and also fixing the date of personal hearing. Appellants sought extension of time vide letter dt. 16.05.2011. The Order-in-Original dt. 30.06.2011 was passed by the refund sanctioning authority rejecting the refund claim. Against this, appellant filed appeal before the Commissioner (Appeals) with delay of one year and 11 months and pleaded that they did not receive copy of the Order-in-Original since the same might have been sent to their old address. They obtained duplicate copy of OIO and had filed appeal before the Commissioner (Appeals) The Commissioner (Appeals) vide order impugned herein rejected appeal being time barred and rejected the refund claim on merits. Hence this appeal.
2. On behalf of the appellant, Ld. Counsel Shri P. Sridharan submitted that appellant shifted the premises and thus there was change of address of the appellant in May 2011. The deficiency memo was issued by the department to their old office address and they had requested for extension of time vide letter dt. 16.05.2011 mentioning their new address. Thereafter, Order-in-Original dated 30.06.2011 was passed exparte without their knowledge. The appellant filed reply to the deficiency memo vide letter dt. 27.3.2012 and then, only they came to know that the Order-in-Original has been passed rejecting the refund claim. They applied for copy of the Order-in-Original and preferred an appeal before Commissioner (Appeals). The Ld. Counsel strongly argued that as the Order-in-Original was not served/delivered to the appellant, the time for filing the appeal before the Commissioner (Appeals) would run only from the date of receiving duplicate copy i.e. 25.6.2013. It is also contended by him that Commissioner (Appeals) has not considered the Chartered Accountant certificate produced by them. He argued that the appellant may be given a chance to furnish sufficient documents and contest the case on merit.
3. The Ld. A.R Shri B. Balamurugan defended the impugned order. He submitted that deficiency memo dt. 19.4.2011 was issued to the appellant in their old address which was received by them; that as per the impugned order it is seen that the appellants were given three chances of personal hearing on 4.5.2011, 11.5.2011 and 18.5.2011. Matter was taken up by the adjudicating authority for disposal only because appellant did not attend the personal hearing and no communication was received from their side; that appellants have filed appeal beyond the condonable period of delay of the Commissioner (Appeals) and therefore the Commissioner (Appeals) has rightly rejected the appeal on the ground of time bar. He submitted that though appellant had requested for adjourning the personal hearing scheduled on 18.5.2011, in this letter, they had not intimated to the department their change of address whereas the change of address was intimated only by letter dated 04.12.2012. Therefore they cannot contend that copy of the Order-in-Original was not received by them due to change of address. Further, there is nothing to show that the copy of the Order-in-Original sent to them was returned as undelivered. It is to be presumed that the same has been delivered to the appellant and that there were some means for them to have received the order as well as intimations sent to their old address by way of redirection or such other. It is pointed out by the A.R that there is inordinate delay of more than one year and 11 months in filing the appeal. Within this period, the appellant ought to have enquired and followed the refund application filed by them, especially, when they have filed application for adjournment of personal hearing. He relied upon the judgment in the case of Singh Enterprises 2008 (221) ELT 163 (S.C.), and argued that Commissioner (Appeals) has no power to condone the delay beyond 30 days and submitted that the Commissioner (Appeals) has rightly rejected the appeal on the ground of time-bar.
4. Heard both sides.
5.1 The main argument put forward by the Ld. Counsel for the appellant is that the Order-in-Original was not received by them due to change of address. Personal hearing of the matter was scheduled by the adjudication officer to 18/05/2011. On 16.05.2011 a letter was given to the Customs officer requesting for adjournment of the personal hearing. It is the case of the appellants that their office was shifted to the new premises in May, 2011 and the new address was shown in this letter. That after 16.05.2011 they did not get any intimation regarding their refund claim. They filed reply to the deficiency memo on 27.03.2012 and thereafter came to know that the Order-in-Original had been already passed rejecting their refund claim on 30.06.2011. On perusal of the letter dated 16.05.2011, it is seen that though the appellants have mentioned their new address in the letterhead, there is no intimation to the department stating that their address has changed. This letter is only a letter for request of adjournment of personal hearing. The Ld. AR is correct in submitting that the appellants had not intimated their change of address in their letter dated 16.05.2011. The appellants have brought to the notice of the department that they have shifted their office in May, 2011 only in their letter dated 04.12.2012 while they made a request to issue a duplicate copy of the Order-in-Original. Further, when the appellants made request for adjournment on 16.05.2011, they ought to have pursued the next hearing date. Instead it is seen that they have sought to file a reply to deficiency memo after much delay on 27.03.2012, without even making any enquiry as to the status of their refund claim. Be that as it may, it is seen from the endorsement made upon the letter dated 16.05.2011 that the letter was delivered to the department by hand. From the impugned order, it is seen that the last date fixed for hearing was 18.05.2011. It can be safely concluded that as per their letter for adjournment the matter was adjourned to 18.05.2011. The next hearing date would have been directly informed to the appellants since the letter was given by hand. The appellants having slept over their chance is now attempting to get over the hurdle of time bar contending that they did not receive the copy of the order due to change of address.
5.2 The Ld. AR has argued that the Order-in-Original sent to the appellants address has not been returned as undelivered. As already discussed above, they did not intimate the change of address to the department and have not pursued the next hearing date of the refund claim after filing a letter of adjournment. Therefore, the contention of the appellant that they have not received the copy of the Order-in-Original and had obtained the duplicate copy of the order only on 25.06.2013 and the appeal was filed before the Commissioner (Appeals) within time when computed from 25.06.2013 cannot be accepted. In the case of Singh Enterprises (supra), the Honble Apex Court has categorically held that the Commissioner (Appeals) cannot condone the delay of more than 30 days which is the condonable period prescribed by the statute.
6. From the above discussions, we are of the considered opinion that the Commissioner (Appeals) has rightly rejected the appeal on the ground of being time barred. We find no merits in the appeal and the same is dismissed.
(Order Pronounced in the Court on 10.10.2017) (Madhu Mohan Damodhar) (Sulekha Beevi C.S) Member (Technical) Member (Judicial) Gs/BB 6 Appeal No.C/40627/2014