2015 (1) TMI 859 - HC - Service Tax

Condonation of delay - Inordinate delay of 244 days - Held that - in the facts and circumstances, the explanation offered by the petitioner for the delay of 244 days and the attempt made to cover up the delay by raising another matter, i.e. a disciplinary action initiated against a Class-IV employee , we are afraid that the same does not show sufficient cause and the causes shown for condonation are of no acceptable value. - Condonation denied.

Issues Involved:
1. Validity of the dismissal of the appeal by the Commissioner (Appeals) and CESTAT on the grounds of delay.
2. Proper service of the adjudication order to the petitioner-company.
3. Interpretation of "registered post" and "speed post" under Section 37C of the Central Excise Act, 1944.
4. Retrospective application of the amendment to Section 37C(1)(a) of the Central Excise Act, 1944.
5. Adequacy of the explanation provided by the petitioner for the delay in filing the appeal.

Detailed Analysis:

1. Validity of the dismissal of the appeal by the Commissioner (Appeals) and CESTAT on the grounds of delay:
The petitioner challenged the order dated 24.10.2013 by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) which dismissed the appeal on the grounds that the Commissioner (Appeals) could only condone a delay of 30 days beyond the statutory limit of 60 days as per Section 35F of the Central Excise Act, 1944. The appeal was filed after 244 days, far beyond the permissible limit, leading to its dismissal by both the Commissioner (Appeals) and CESTAT.

2. Proper service of the adjudication order to the petitioner-company:
The petitioner argued that the order dated 12.7.2011 was improperly served as it was handed over to a peon and not brought to the management's notice. They claimed that the appeal was filed within the statutory period from the date they acknowledged receipt of the order on 29.5.2012. The petitioner contended that the service of the order was not lawful as it was not served by "registered post" but by "speed post," which they argued was not in compliance with Section 37C of the Central Excise Act, 1944.

3. Interpretation of "registered post" and "speed post" under Section 37C of the Central Excise Act, 1944:
The Court examined the definition of "registered post" under Section 28 of the Indian Post Office Act, 1898, and Rule 66-B of the Indian Post Office Rules, 1933. It concluded that both "registered post" and "speed post" satisfy the requirements of Section 28 as receipts are issued for both. The Court held that sending the order by "speed post" was in compliance with the law, rejecting the petitioner's argument that only "registered post" was valid.

4. Retrospective application of the amendment to Section 37C(1)(a) of the Central Excise Act, 1944:
The petitioner argued that the amendment to Section 37C(1)(a) adding "speed post" should apply prospectively. The Court rejected this argument, stating that the amendment was clarificatory in nature and thus retrospective. The Court cited precedents indicating that clarificatory amendments date back to the original provision's introduction, affirming that "speed post" was always within the scope of "registered post."

5. Adequacy of the explanation provided by the petitioner for the delay in filing the appeal:
The Court found the petitioner's explanation for the 244-day delay unconvincing. The petitioner attempted to blame a Class-IV employee for the delay, but the Court noted that this did not constitute "sufficient cause" as required by law. The Court emphasized that the causes shown for condonation were of no acceptable value.

Conclusion:
The writ application was dismissed, with the Court holding that the service of the order by "speed post" was valid and the amendment to Section 37C was clarificatory and retrospective. The Court found no sufficient cause for the delay in filing the appeal and upheld the dismissal by the Commissioner (Appeals) and CESTAT. No costs were awarded.

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