Case Law Details
Venkateshwara Power Projects Ltd Vs Commissioner of Central Tax (CESTAT Bangalore)
Assistant Commissioner passed the Order-in-Original on 18/03/2019 but the same was not actually delivered to the appellant. The appellant only came to know on 12/03/2020 when they received a letter from the Superintendent informing them about the passing of the Order-in-Original and ordered to recover the credit of Rs.15,52,986/-along with interest and penalties. Thereafter the appellant vide their letter dt. 16/03/2020 informed the Superintendent that they have not received the Order-in-Original and requested him to provide the certified copy of the said Order-in-Original and the appellant also requested the Department to provide the proof of service of the said order on them; but the Superintendent vide his email dt. 17/03/2020 only provided scanned copy of the Order-in-Original but did not provide any proof of service of the said Order-in-Original on the appellant. Since the Department has failed to prove the delivery of the Order-in-Original on the appellant, the date on which the appellant has actually received the scanned copy will be considered as the actual receipt and from that date, the appeal filed before Commissioner (Appeals) was within time. This issue has been considered in various decisions and it has been consistently held that the Department has to give proof of actual receipt of the order by the assessee and in the absence thereof, the date of obtaining copy of the order by the appellant will be considered as the date of receipt of the order.
FULL TEXT OF THE CESTAT JUDGEMENT
The present appeal is directed against the impugned order dt. 09/09/2020 passed by the Commissioner (Appeals), Belgaum whereby the Commissioner (Appeals) has rejected the appeal of the appellant on time bar.
2. Briefly, the facts of the present case are that the appellants are engaged in the manufacture of excisable goods viz. Sugar and Molasses falling under Chapter 17 of the Central Excise Tariff Act, 1985. During the course of detailed verification of the records of the appellant for the period from March 2017 to June 2017, it was noticed by the Revenue that the appellant has availed cenvat credit on certain items viz. HR coils, MS angles, MS channels, MS plates, etc. treating them as capital goods which are ineligible to take cenvat credit. On these allegations, a show-cause notice dt. 23/10/2018 was issued to the appellant proposing to deny cenvat credit of Rs.15,52,986/- along with appropriate interest and imposition of penalty. After following due process, the Assistant Commissioner vide his Order-in-Original No.BEL-EXCUS-000-DIV-AKS-32-2018-19 dt. 18.03.2019 disallowed the cenvat credit of Rs.15,52,986/- along with interest and also imposed equal penalty. Aggrieved by the said order, appellant filed appeal before the Commissioner (Appeals) and the Commissioner (Appeals), without going into the merits of the case rejected the appeal of the appellant on time bar. Hence, the present appeal.
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