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Judgment
This is an appeal against an order holding, inter alia, that the appeal before the Commissioner of Central Excise (Appeal II) was barred by limitation and the Commissioner of Central Excise (Appeal II) had no authority to condone the delay. It is an admitted position that the Commissioner of Central Excise (Appeal II) had no authority to condone the delay. Mr. Chowdhury, however, raises an interesting question. He submits that his client was entitled to a copy of the order of adjudication from the department. He emphatically submits that the copy of the order was not at all delivered to his client. Therefore, the appeal presented by his client was not barred by limitation.
Mr. R. Bharadwaj, learned advocate, appears for the respondents and pursuant to our directions has obtained instructions from the department. He files photocopy of the purported receipt allegedly obtained by the courier service agency at the time of alleged delivery of the adjudication order to an alleged employee of the appellant. Mr. Bharadwaj, in his usual fairness, submits that the original receipt is not available in the office. He, however, submits a copy of the statement by the proprietor of the courier service agency, which says that he personally delivered the envelope to one Mr. Das, who was an employee of the appellant company. Mr. Chowdhury submits that no copy was delivered to his client. He submits that, there was no such employee as ''Sri Das'' in the organization of the appellant.
It is not very clear to us whether the adjudication order was ever delivered to the appellant company. Unfortunately, the original receipt is not coming. It will be too risky to accept the contention of a proprietor of a private courier service in order to frustrate a statutory right of a citizen. To avoid all future controversies in the matter, we set aside the order of the tribunals below and hold the appeal was presented in time.
We, therefore, dispose of the appeal with a request to the Commissioner of Central Excise (Appeal II) to consider the appeal on merits and dispose of the same within two months from the date of communication of this order.
In view of the disposal of the appeal, the connected application for stay becomes infructuous and, also, stands disposed of.
We, however, direct the parties to bear the respective costs in this appeal.
All concerned are to act on a xeroxed signed copy of this order to be supplied to the parties on the usual undertakings.