2013 (4) TMI 402 - AT - Service Tax

Appeal dismissed on the grounds of limitation - It was argued by the assessee that the order in original dated 30.12.2010 was not served upon as per the procedure prescribed under Section 37C of the Central Excise Act, 1944 - Held that - The whole idea of serving the decision/ order under Section 37C is that the person to whom it is addressed duly receives such communication. This Section does not indicate that the required documents should be sent only through RPAD. Moreover, the wording of appellant s letter dated 05.9.2011 clearly indicate that the order dated 30.12.2010 was received by them and the same was misplaced during shifting of their office to a new location. So the main point of receipt of order in original before 06.9.2011 stands settled when the appellant himself accepts the receipt of the order. Further, it is rightly pointed out by the by A.R. for the department that none of the judgments case of R.K. Agarwal vs. CESTAT, New Delhi 2007 (11) TMI 62 - HIGH COURT ALLAHABAD relied upon by the appellant is applicable to the facts of this case as in all those cases, the fact of receipt of order by the assessee was never established. Against assessee.

Summary

Issues Involved:
Appeal against order in appeal dismissed on grounds of limitation - Service of order in original under Section 37C of Central Excise Act, 1944 - Applicability of judgments relied upon by the appellant.

Analysis:
The appeal was filed against the order in appeal No. 193/2011 passed by the Commissioner (Appeals), which was dismissed on the grounds of limitation. The crucial issue in this appeal was whether the first copy of the order in original dated 30.12.2010 was received by the appellant before 06.9.2011. The appellant argued that the order was not served as per the procedure prescribed under Section 37C of the Central Excise Act and relied on specific judgments to support their argument. On the other hand, the department argued that the order was duly served based on a letter from the appellant requesting a duplicate copy of the order. The Commissioner (Appeals) discussed this aspect in detail and relied on the appellant's letter dated 05.9.2011, which indicated that the order had been received before 06.9.2011.

The main contention revolved around the interpretation of Section 37C of the Central Excise Act, which provides for the service of decisions, orders, summons, etc. The section allows for the service of the order by tendering it to the concerned person or by sending it through registered post with acknowledgment due. The appellant's letter dated 05.9.2011 confirmed the receipt of the order dated 30.12.2010, even though it was misplaced during office shifting. The Tribunal noted that the judgments relied upon by the appellant did not establish the fact of receipt of the order by the appellants, making them distinguishable from the current case.

The Tribunal upheld the order in appeal passed by the Commissioner (Appeals) on the grounds of limitation, stating that the order in original had been received by the appellant before 06.9.2011, as evidenced by the appellant's own letter. The Tribunal distinguished the case laws relied upon by the appellants, emphasizing that in the present case, the receipt of the order was confirmed, albeit misplaced. Therefore, the appeal filed by the appellant was dismissed based on the upheld order in appeal.

In conclusion, the Tribunal's decision was based on the interpretation of Section 37C of the Central Excise Act and the specific circumstances of the case, where the appellant's acknowledgment of receiving the order played a crucial role in determining the outcome of the appeal.