2014 (7) TMI 437 - AT - Central Excise

Maintainability of appeal before commissioner (appeals) - effective date of delivery or order - Order sent through speed post - whether delivery of the order or dispatch by speed post can be considered as in accordance with provisions of Section 37C of Central Excise Act 1944 or not - Held that - dispatch of the order-in-original to the appellant was not in accordance with Section 37C ibid. If that be the case, it is not open to the department to claim to have served the order-in-original on the appellant in accordance with law. The next question was whether the service by tender can be applied when the department has produced proof of delivery by whatever mode the decision has been served. - Held that - The observations of the High Court in the case of Union of India Vs. Kanti Tarafdar 1995 (9) TMI 75 - HIGH COURT AT CALCUTTA are very clear and therefore the delivery by speed post where the proof is available also cannot be brought under the mode of dispatch of tender. Under these circumstances, in my opinion, Commissioner s order that date of delivery has to be taken as the date of which speed post was delivered and dispatched by registered post or speed post does not make any difference is not correct. - matter remanded back to consider COD, stay application and appeal in accordance with law. - Decided in favour of assessee.

Summary

Issues:
1. Delay in filing appeal and consideration of merit.
2. Validity of delivery of order via speed post under Section 37C of Central Excise Act 1944.

Issue 1 - Delay in filing appeal and consideration of merit:
The Appellate Tribunal noted that the lower authority rejected the appeal solely based on delay without considering the merit. As a result, the Tribunal decided to remand the appeal to the Commissioner (Appeals) for a fresh decision on both the appeal and stay application after waiving the pre-deposit requirement.

Issue 2 - Validity of delivery of order via speed post under Section 37C of Central Excise Act 1944:
The main issue revolved around whether the delivery of the order via speed post complied with the provisions of Section 37C. The appellant argued that delivery should have been made by registered post acknowledgment due, not speed post. The Tribunal analyzed previous decisions and legal provisions to determine the validity of delivery methods. It was established that delivery by speed post did not fulfill the requirements of Section 37C, which mandates delivery by registered post with acknowledgment due. The Tribunal cited precedents to support this interpretation and rejected the department's reliance on cases related to different statutes. The Tribunal emphasized that the mode of dispatch was crucial in ensuring proper service, and delivery by speed post did not meet the legal standards. However, the Tribunal clarified that if evidence had shown dispatch via speed post with acknowledgment due, it could have been considered equivalent to registered post with acknowledgment due. Ultimately, the Tribunal set aside the Commissioner's decision to reject the appeal and remanded the matter for further consideration in accordance with the law.

In conclusion, the judgment addressed the issues of delay in filing the appeal and the validity of the delivery method under Section 37C of the Central Excise Act 1944. The Tribunal emphasized the importance of complying with legal requirements for service of orders and directed a fresh consideration of the appeal and stay application based on the remand decision.