JUDGMENT
P.S. Bajaj, Member (J)
1. This appeal has been filed by the appellants against the impugned order-in-appeal dated 12.3.2003 vide which the Commissioner (Appeals) has dismissed the appeal of the appellants against the Order-in-Original holding the same to be time barred.
2. The learned Counsel has contended that the impugned order was received by them only on 10.6.2002 from their gate keeper as the factory was lying closed and the appeal was filed on 28.6.2002 and as such the same was within time. The learned JDR, on the other hand, has contended that the Order-in-original was despatched to the appellants through registered post on 8.2.2002 and that they even deposited the entire duty by making debit entry in their RG 23A Part II on 15.2.2002 and penalty was deposited through TR 6 challan on 2.3.2002. Therefore, it could be inferred that they had received the copy of the order on 8.2.2002 and the appeal having been filed by them after expiry of the statutory period had been rightly dismissed by the Commissioner (Appeals).
3. I have heard both sides and gone through the record. The fact of deposit of the duty by the appellants by making entry in the relevant record and of penalty through bank challans on the dates detailed above, could not lead to an irresistible conclusion that the impugned order was received by them before the deposit. In the impugned order, it has been observed by the learned Commissioner (Appeals) that the Order-in-Original passed on 6.2.2002, was despatched on 8,2.2002 to the appellants but who received it on behalf of the appellants and when it was received, has not been discussed by the Commissioner (Appeals). He has only raised presumption about the receipt of the impugned order by the appellants on or before 15.2.2002. But such a presumption could not be legally raised. The Commissioner (Appeals) was required to disclose the exact date when the Order-in-original was actually received by the appellants. Therefore, his observations that the appeal was filed beyond sixty days from 15.2.2002 cannot be sustained.
4. On the other hand, the appellants even submitted an affidavit before the Commissioner (Appeals) wherein they disclosed the exact date as 10.6.2002 when they received the copy of the order from the gate keeper. The correctness of this affidavit which was filed by Shri Ajay Singhal, MD of the appellants company, had not been disputed by the Commissioner (Appeals) in the impugned order. He has not even referred to it.
5. The appellants had no motive in not filing the appeal within time from the date of receipt of Order-in-original. They had rather deposited the entire duty and penalty as confirmed against them through the Order-in-original. If they had actually received the order on or before 15.2.2002, there was no cause for them for not filing the appeal within time, especially when they had no intention to avoid the payment of duty and penalty. They had as observed above, deposited the duty and penalty, before the start of any recovery proceedings against them by the department. The Department having failed to prove the actual date of communication of the Order-in-original to the appellants, there was no cause for the Commissioner (Appeals) in not accepting the date as disclosed by the Managing Director of the appellant company in his affidavit, on which the Order-in-original was received by him and from that date the appeal filed by the appellants was within time.
6. Moreover, it is well settled that technicalities of law cannot be allowed to stand in the way of administration of justice and if pitted (sic) against the justice, the latter has to prevail. The appellants deserves to be heard on merits especially when they had already deposited the duty and penalty. It is not a case where it could be said that the assessee was avoiding the payment of duty and penalty and was only interested in prolonging the matter. Rather it is a case where the assessee/appellants had prayed for hearing on merits after depositing duty and penalty therefore, the interest of justice demands that they should be heard in the appeal filed by them on merits in the light of the facts and circumstances discussed above.
7. Consequently, the impugned order of the Commissioner (Appeals) is set aside and the matter is sent back to the Commissioner (Appeals) for hearing the appeal on merits. The appeal is disposed of accordingly.