Anil Choudhary DECISION
Anil Choudhary, Member (J)
1. The brief facts are that the appellant is a registered manufacturer of S.S. Ingots and S.S. Flats having their factory at C-10, S.M.A. Industrial Area, G.T. Karnal Road, Delhi-110033. A search was conducted on 19.11.2005 by the Officers of Anti Evasion Branch of Central Excise Commissionerate, Delhi-I. Some excess stock of 484.944 MT of S.S. Ingots was found in the premises of another registered dealer namely M/s. B.B. Steels Private Limited (buyer/job worker). The Director of M/s. B.B. Steel Private Limited, Shri P.K. Gupta stated that he has received the same from this appellant- M/s. Duggar Fibre Pvt. Limited, without cover of Central Excise invoice or challan and without payment of duty. The excess stock of 484.944 MT of S.S. Ingots valued at Rs. 1,55,20,000/- was seized vide panchnama dated 19.11.2005. It was alleged that this appellant had cleared 484.944 MT of S.S. Ingots valued at Rs. 1,55,20,000/- with intent to evade payment of duty amounting to Rs. 25,32,864/-. This amount was deposited by appellant. Pursuant to contested show cause notice, vide order-in-original dated 08.03.2010, the Additional Commissioner (Adjudication), Delhi-I ordered confiscation of seized goods, with option to redeem on payment of fine amounting Rs. 5 lakhs, and further confirmed duty amount of Rs. 27,51,154/- and appropriated the amount of Rs. 27,46,874/- deposited by the appellant Further, penalty of Rs. 27,51,454/- was imposed on - M/s. Duggar Fibre Pvt. Limited. Further, penalty of Rs. 5 lakhs was imposed on Shri P.K. Gupta (Director of M/s. B.B. Steel Pvt. Limited) under rule 26 of Central Excise Rules, 2002.
2. In appeal filed by the parties, the Commissioner (Appeals) vide order-in-appeal No. 33-35/CE/DLH/2012 dated 28.05.2012, set aside the adjudication order, observing that actual weight of all S.S. Ingots was not done, Shri P.K. Gupta had retracted his statement next day after his statement was recorded each time, and further duty on 717 hot rolled strips can only be demanded from - M/s. B.B. Steel Pvt. Limited. This order-in-appeal was accepted by the Department on 2.03.2013. Thereafter, the appellant - M/s. Duggar Fibre Pvt. Limited filed refund claim for Rs. 34,42,038/- (including penalty) on 03.02.2017. The refund sanctioning authority vide order-in-original No. R-27/2017-18 dated 02.05.2017 sanctioned the refund for Rs. 34,42,218/- to- M/s. Duggar Fibre Pvt. Limited, paid through RTGS.
3. Thereafter, Revenue filed appeal before Commissioner (Appeals) against refund order dated 02.05.2017 on the ground that the said refund was already 'time barred'. The application for refund was filed after expiry of one year from the relevant date i.e. date of order-in-appeal.
3.1. Vide Order-in-appeal dated 10.04.2018, the learned Commissioner (Appeals) observing that the order-in-appeal dated 28.05.2012 was despatched through speed post to all the parties at their address, and none of the despatch envelop were returned back by the Postal Department. Accordingly, service on the parties was presumed and the claim was held to be barred by limitation. It was further observed that- M/s. Duggar Fibre Pvt. Limited vide letter dated 02.11.2016 requested the Commissioner (Appeals) for certified true copy of the order-in-appeal dated 28.05.2012. Further, the appellant has also claimed that the duty was deposited during investigation and under the facts and circumstances, it should be treated as payment under protest. The Commissioner (Appeals) observed that in absence of clear procedure of 'under protest' having been followed, presumption of such payment under protest can't be taken as correct.
4. Being aggrieved, the appellant- M/s. Duggar Fibre Pvt. Limited is before this Tribunal on the grounds amongst others that the Commissioner (Appeals) have erred in presuming service of the order-in-appeal dated 28.05.2012, without there being any proof of service on the appellant. There is evidently no compliance of the requisite of Section