2011 (7) TMI 193 - AT - Central Excise

Waiver of pre-deposit - Limitation - Provision of section 37C - Appellants submitted that in this case, order in original was passed on 13.06.2007 and issued on 21.06.2007 - The appellant did not know about the order since he had not received the copy - He observed that the appellant s argument that appellant s wife is not authorised to sign and receive the order etc. are not valid grounds and therefore, he held that the appeal is barred by limitation - Hence, the department has stronger case in the sense that postal acknowledgement signed by a person is available - Unfortunately neither the appellant nor department can say who exactly signed and who took delivery of the same but for the purpose of Section 37C, it is not relevant - In the case of Rajesh Kumar Jain vs. UOI 1999 (113) ELT 57 (Cal ) , the Hon ble High Court of Kolkata came to the conclusion that service of notice is complete either by tendering or sending the same by registered post - Decided against the assessee.

Summary

Issues Involved:
Maintainability of appeal and limitation for rejecting the appeal.

Analysis:
The matter was listed for final hearing without prior consideration of the stay petition. The key issue revolved around the appeal's maintainability and the correctness of the Commissioner's decision to reject the appeal based on limitation. Both parties agreed to proceed with the appeal without the pre-deposit requirement.

The appellant contended that they were unaware of the order due to not receiving a copy promptly. They only learned about the penalty imposed after a year and subsequently sought a certified copy. The appellant's argument was centered on the fact that the order was not communicated to them until the certified copy was handed over as per the High Court's order. The appellant's wife denied signing the postal acknowledgment slip, providing evidence to support this claim.

On the other hand, the Department argued that under Section 37C of the Central Excise Act, once the order is sent by registered post and the postal acknowledgment is received, the communication is deemed complete. Citing previous tribunal decisions, the Department contended that the appellant cannot claim non-receipt of the order once it is sent by registered post.

The Tribunal analyzed the submissions and highlighted the distinction between communication and service under the Central Excise Act. It was noted that Section 37C specifically addresses service and when it is considered complete. Relying on previous decisions, the Tribunal emphasized that once an order is sent by registered post, it is deemed served, regardless of actual receipt. The Tribunal found that while the appellant may have equitable grounds, legally, the appeal was not sustainable. Consequently, the impugned order was upheld, and both the stay petition and the appeal were rejected.