2013 (4) TMI 131 - HC - Central Excise

Condonation of Delay - Service on an order - period of limitation - Section 37-C (1b) of Central Excise Act - Held that - Section 37-C of the Act provides for the method of service of the order - The revenue made an attempt to serve the appellant by substituted service - It is not denied that the order was pasted on the factory gate and that the appellant came to know about it on 26.12.2007. The appellant satisfied himself by sending a letter to the department to provide a copy of the order. He did not make any efforts to obtain a certified copy of the order, to file the appeal within limitation which in such case has to be counted from 26.12.2007. The question of condonation of delay beyond 30 days after the limitation expires, was considered in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & others 2007 (12) TMI 11 - SUPREME COURT OF INDIA . The Supreme Court held that the provisions of Section 35 override the provisions of Section 5 of the Limitation Act and that whether there is any sufficient cause for condonation of delay which means adequate or enough is essentially a question of fact - The CESTAT has not committed any error of law in finding that the appeal was barred by limitation, and thus no substantial question of law arises for consideration of the Court - Appeal is dismissed in limine.

Summary

Issues:
Appeal barred by limitation due to service method under Section 37-C of the Act.

Analysis:
The Central Excise Appeal in question arose from an order issued by the Member Judicial of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) rejecting the Excise Appeal. The Commissioner of Central Excise (Appeals) had also rejected the appeal as barred by time, with the Order-in-Original being passed on 28.9.2007. The appellant contended that the order was not served upon them, leading to the appeal being filed late on 10.9.2008, which was held to be barred by limitation. The appellant argued that the service method prescribed in law under Section 37-C of the Act was not followed, as the order was sent only by speed post, not registered post, and was returned undelivered.

The CESTAT found that the service method should have first been through registered post as per Section 37-C, with pasting of orders being a secondary measure. The appellant had come to know about the order on 26.12.2007, but instead of promptly applying for a certified copy, they only sent a letter on the same day without providing a new address for communication. The CESTAT concluded that the revenue had fulfilled its legal obligation under Section 37-C, and the appeal should have been filed in time. The appellant's delay in filing the appeal, about 8-9 months after the limitation period expired, was not justified.

In the appeal, the appellant argued that the pasting of one page of the order at the factory gate did not constitute valid service under Section 37-C of the Act. However, the court found no merit in this argument. The court emphasized that the method of service under Section 37-C includes both registered post and speed post, with the objective being to maintain a record of communication. Since the appellant did not provide a forwarding address, the attempt at substituted service by pasting the order on the factory gate was deemed valid. The court cited a previous case to highlight that the question of condonation of delay beyond the limitation period is a factual determination, and in this case, the CESTAT had not erred in finding the appeal time-barred.

Ultimately, the High Court dismissed the Central Excise Appeal, affirming the CESTAT's decision that the appeal was indeed barred by limitation. The court found no substantial question of law to consider, upholding the CESTAT's ruling on the matter.