CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL, MUMBAI REGIONAL BENCH - COURT NO. I Excise Appeal No. 87778 of 2016 &

Excise Cross Objection No. 91075 of 2017 (Arising out of Order-in-Appeal No. PK/27 & 28/RGD/2016 dated 29.08.2016 passed by the Commissioner of Central Excise (Appeals), Mumbai-II)

Shri Ved Prakash Bansal .… Appellant

21/7, Divya Darshan, Jagdusha Golibar Road, Ghatkopar (W), Mumbai – 400 086 Versus Commissioner of Central Excise, Raigad …. Respondent Kendriya Utpad Shulka Bhavan, Plot No. 1, Sector-17, Kandeshwar, New Panvel – 410 206 WITH Excise Appeal No. 87779 of 2016 &

Excise Cross Objection No. 91072 of 2017 (Arising out of Order-in-Appeal No. PK/27 & 28/RGD/2016 dated 29.08.2016 passed by the Commissioner of Central Excise (Appeals), Mumbai-II)

Riddhi Iron & Steel Pvt. Ltd. .… Appellant C/o Shri Ved Prakash Bansal

21/7, Divya Darshan, Jagdusha Golibar Road, Ghatkopar (W), Mumbai – 400 086 Versus Commissioner of Central Excise, Raigad …. Respondent Kendriya Utpad Shulka Bhavan, Plot No. 1, Sector-17, Kandeshwar, New Panvel – 410 206 APPEARANCE:

Shri Shailesh P. Sheth, Advocate for the Appellants Shri Ranjan Kumar, Authorized Representative for the Respondent CORAM:

FINAL ORDER NO. A/85163-85164/2026 PER: S.K. MOHANTY Feeling aggrieved with the Order-in-Appeal No. PK/27 & 28/RGD/

2016 dated 29.08.2016 (hereinafter referred to as “the impugned order”), both the appellants have preferred these appeals before the Tribunal. Vide the impugned order dated 29.08.2016, the learned Commissioner (Appeals) has rejected the appeals filed by the appellants on the ground that no delay condonation applications were filed, seeking condonation of delay in late filing of appeal and that the appeals have been preferred beyond the prescribed time limit of 90 days from the date of receipt of the adjudication order and thus, in terms of Section 35(1) of the Central Excise Act, 1944, the delay cannot be condoned.

2. The appellants have contended that the learned Commissioner (Appeals) has relied upon the letter dated 29.08.2016 of the jurisdictional Range Superintendent to conclude that there is a delay in filing the appeals before him as the first Appellate Authority. However, it was contended by the appellants that the said letter of Range Superintendent was not handed over to the appellants during the course of proceedings before the learned Commissioner (Appeals). It was further contended that the impugned orders dated 29.08.2016 passed by the learned Commissioner (Appeals) are contradicting with the fact regarding the actual number of days of delay involved in filing the appeal before him. In this context, the learned Advocate appearing for the appellants has invited the attention of the Bench to paragraph 7 in the impugned order, wherein it has been recorded by the learned Commissioner (Appeals) that there is delay of only 5 days in filing appeal and in paragraph 8, he has recoded that the appeal was filed beyond the condonable period prescribed in the statute.

3. On examination of the impugned order, we find that there is a contradiction in the stand taken by the learned Commissioner (Appeals) with regard to the issue of actual number of days of delay in filing the appeals before him. Therefore, we are of the considered view that the matter should be referred back to the learned Commissioner (Appeals) for proper fact finding as to the actual number of days in filing the appeal before him. The learned Commissioner (Appeals) should also submit the letter dated 29.08.2016 of the Range Superintendent and should also examine the provision of Section 37C of the Central Excise Act, 1944, which provides for the manner of service of order etc., meant for the person for whom it is intended to. Upon examination of the documentary evidences and the statutory provisions quoted above, he should come to a conclusion, whether there is any delay in filing the appeal and, if there is any, then whether such delay is within the condonable period, pr