Parvez Ahmad Ansari Vs Commissioner of Central Excise & CGST (CESTAT Allahabad)

The appeal was filed by Parvez Ahmad Ansari against Order-in-Appeal No. 310/ST/ALLD/2024 dated 05.06.2024, whereby the Commissioner (Appeals), Customs, CGST & Central Excise, Allahabad, rejected the appeal as time-barred without deciding it on merits. The Appellant submitted that he had neither been served the Show Cause Notice nor received notices of personal hearing, resulting in the Order-in-Original dated 11.03.2023 being passed ex parte. The order was dispatched by Registered Post but returned undelivered. According to the Appellant, he first became aware of the demand and the adjudication order when Form GST DRC-07A was uploaded on the GST Portal, and a copy of the Order-in-Original was subsequently served on him on 30.01.2024. He filed the appeal before the First Appellate Authority on 28.02.2024, which he contended was within the statutory period of 60 days.

The Department submitted para-wise comments along with a Panchnama dated 27.04.2023 concerning service of the Order-in-Original by Chaspa at the Appellant’s premises. The Commissioner (Appeals) had treated 27.04.2023 as the date of service and consequently found the appeal filed on 28.02.2024 to be barred by limitation.

CESTAT examined the Panchnama and found that it had been drawn in the presence of two witnesses, one from Faizabad and another from Jaunpur. The Tribunal noted that the Appellant’s unit or residence was not existing at the location where the order was affixed. The witnesses also stated that when they asked about the Appellant or his firm, nobody knew about them, and the Appellant was not present when the order was affixed. On these facts, the Tribunal held that the adjudication order had not been communicated to the Appellant in a manner enabling him to file an appeal.

The Tribunal further held that Section 37C of the Act could not apply in the circumstances because the statutory requirement contemplated affixing the order on the compound wall of the factory, other place of business, or residence of the person for whom the decision was intended. Since the Panchnama was drawn at a place that was neither the Appellant’s factory nor his residence, the affixture could not be treated as communication of the adjudication order under Section 37C.

Accordingly, CESTAT held that the date of communication of the adjudication order should be taken as 30.01.2024. Since the appeal was filed on 28.02.2024, it was within the statutory period for filing before the First Appellate Authority. The Tribunal considered it appropriate to remand the matter to the Adjudicating Authority because the relevant documents had not been produced before that authority and therefore could not be verified. The Appellant was directed to cooperate in the de-novo proceedings and not seek unnecessary adjournments. The appeal was ultimately allowed by way of remand to the Adjudicating Authority.

FULL TEXT OF THE CESTAT ALLAHABAD ORDER

The present appeal has been filed by the Appellant assailing the Order-in-Appeal No.310/ST/ALLD/2024 dated 05.06.2024 passed by Commissioner (Appeals) Customs, CGST & Central Excise, Allahabad.

2. The facts of the case in brief are that the learned Commissioner (Appeals) has not decided the appeal before him on merits but has rejected the same as not maintainable on the ground of limitation of time.

3. Learned Advocate appearing on behalf of the Appellant submits that the Appellant was neither served with the Show Cause Notice¹ and nor had received any of the notices for personal hearing and accordingly did not appear before the Adjudicating Authority. Order-in-Original dated 11.03.2023 was passed ex parte and was dispatched by Registered Post which was returned un-delivered and there is no dispute on this fact. It is his submission that the Appellant is registered with the GST Authorities under Registration No.09ABTPA3147J1ZF. He further submits that the Appellant came to know about the Order-in-Original dated 11.03.2023, only on 30.01.2024 upon the uploading of Form GST DRC-07A. Accordingly, he submits that there is no delay in filing of the appeal before the first Appellate Authority and the appeal may be allowed.

4. Leaned Authorized Representative has submitted a communication from the Assistant Commissioner GST & Central Excise, Division Jaunpur dated 28.07.2026, whereby para-wise comments has been submitted alongwith a copy of the Panchnama drawn on the date of Chaspa of the Order-in-Original at the Appellant’s premises.

5. Heard both the sides and perused the appeal records as well as the documents submitted by the learned Authorized Representative.

6. I find that the Order-in-Original dated 11.03.2023 was dispatched by Registered Post but the same was returned un­delivered. It is the case of the Appellant that the Order-in-Original dated 11.03.2023 was never received by him and it was only when the Department had uploaded Form GST DRC-07A in GST Portal, the Appellant came to know about the demand and that the Order-in-Original has been passed. Thereafter, he approached the Department for issuance of copy of the Order-in-Original, which was served on him on 30.01.2024 and thereafter the appeal was filed before the first Appellate Authority on 28.02.2024 i.e. well within the statutory period of 60 days.

7. Further, it is the case of the Department that the Order-in-Original dispatched through Registered Post was returned un­delivered to their office and thereafter, the order was served upon the Appellant by way of Chaspa on the main door of the Appellant’s premises and Panchnama was drawn on 27.04.2023. Accordingly, learned Commissioner (Appeals) has held that them date of service has been taken as 27.04.2023 and the appeal filed on 28.02.2024 is barred by limitation of time and rejected the same.

8. Learned Advocate appearing on behalf of the Appellant has submitted that they are not aware of the service of Order-in-Original by way of Chaspa on the door of the Appellant’s premises and further none of the witnesses in the Panchnama are either known to the Appellant or are from the same locality. For ready reference Panchnama is being reproduced:-

9. After having heard both the sides and on perusal of records, I find that Panchanama dated 27.04.2023 drawn in the presence of two independent witnesses, one is from Faizabad and the other one is from Jaunpur. Instead of calling for independent witnesses either from the neighbours or from local area, witnesses have been called from far off places Faizabad and Jaunpur for the reasons best known to them. Perusal of the Panchanama extracted above reveal that the unit/ residence of the Appellant was not existing at the site, where the order has been affixed. Further, the Panchnama witnesses have also stated that, when they asked about Appellant or Appellant’s firm, nobody knew about the Appellant or Appellant’s firm and the Appellant was not present at the time of affixing the order. Hence, the Panchanama drawn in presence of the witnesses clearly depicts that the adjudication order has not been communicated to the Appellant, enabling him to file the appeal. I also find that the provisions of Section 37C of the Act will have no application to the facts of the present case in view of the fact that as per the requirement of the said section, the order has to be served by affixing a copy thereof on the compound wall of the factory or other place of business or the residence or in the residence of the person for whom such decision is intended. Since, the Panchnama has been drawn at a place which is neither the factory nor the residence of the Appellant, it cannot be construed that the adjudication order has been communicated to the Appellant in terms of Section 37C of the Act. Therefore, I am of the considered view that date of communication of the copy of the adjudication order should be taken as 30.01.2024. Since the appeal has been filed on 28.02.2024, the same is well within the statutory period of filing of the appeal before the First Appellate Authority.

10. On facts as stated above and under the circumstances of the case, I find it appropriate to remand the matter to the learned Adjudicating Authority since the documents were not produced before him and he could not verify the same. The Appellant is directed to cooperate in the De-Novo proceedings before the Adjudicating Authority and not to seek unnecessary adjournments.

11. The appeal filed by the Appellant is allowed by way of remand to the Adjudicating Authority.

(Dictated and pronounced in open court)

Note:

¹ SCN