2018 (7) TMI 259 - AT - Central Excise

Service of order - Section 37C (1)(a) of the Central Excise Act - case of Revenue is that the onus of proof lies on the appellant to prove that 12.05.2017 is the actual date of receipt of the Order-in-Original dated 29.02.2016 by the appellant, which the appellant have fail to discharge - Held that - Admittedly there is no proof of delivery of the Order-in-Original on the appellant - As per Section 37C, it was mandatory on the part of Revenue to serve a copy of the order by registered post or speed post with acknowledgment due‟ to the assessee or to its authorize agent. Admittedly there is no acknowledgement available on the record of the Revenue supporting the assumed date of service by the Department. The Revenue‟s only ground for holding the said order as having been received by the appellant is that the same was sent by the speed post and does not stand received back by the Revenue - the issue whether the dispatch of order by speed post by itself is sufficient to reflect upon the fact of receipt of the same or not was considered by the Larger bench of Tribunal in the case of Margra Industries Ltd. Vs. CC, New Delhi, 2006 (7) TMI 18 - CESTAT, NEW DELHI in which it was held that it cannot be presumed that the dispatch of the order by speed post, in the absence of any proof of delivery, results in communication of the order. The ld. Commissioner (Appeals) is directed to hear the appellant on merits and disposed of the appeals in accordance with law - appeal allowed by way of remand.

Summary

Issues:
1. Dismissal of appeal by Commissioner (Appeals) based on limitation without considering merits.
2. Interpretation of Section 37C of the Central Excise Act regarding service of decisions/orders.
3. Onus of proof on the appellant regarding the actual date of receipt of the Order-in-Original.

Analysis:
1. The appeal was filed against the dismissal order by the Commissioner (Appeals) solely on the ground of limitation without delving into the merits of the case. The Commissioner held that the appellant failed to prove the actual date of receipt of the impugned adjudication order, which was crucial for the appeal's timeline.

2. The appellant argued that Section 37C(1)(a) of the Central Excise Act mandates service by registered post with acknowledgment due, emphasizing the importance of "acknowledgment due" in postal service. The Department, however, contended that the burden of proof rested on the appellant to establish the receipt date, which they allegedly failed to discharge.

3. Examining Section 37C of the Central Excise Act, it was noted that there was no proof of delivery of the Order-in-Original to the appellant. The Revenue assumed the receipt based on the dispatch date and internal receipt by other offices. However, the absence of an acknowledgment raised doubts. Citing precedents, it was highlighted that dispatch by speed post alone does not confirm receipt without proof of delivery. The Tribunal overturned the dismissal, directing the Commissioner (Appeals) to reconsider the case on its merits, emphasizing the need for proper service and proof of receipt.

In conclusion, the judgment emphasized the significance of proper service methods and proof of delivery in legal proceedings, highlighting the appellant's right to a fair consideration of their case beyond technical limitations.