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2006 (11) TMI 218 - HC - Central ExciseCondonation of delay in filing appeal - Service of decision - non appearance - whether the expression 'decisions' and words 'service of decisions' in Section 37C applies to decisions handed down by the CESTAT in appeal - HELD THAT - We hold that the provisions of Section 37C of the Act requiring the service of the decisions passed under the Act, would also apply to the decisions handed down by the CESTAT. This interpretation harmonises Rule 35 of the CEGAT (Procedure) Rules, 1982 with Section 37C. While Section 37C deals with the aspect of service of the decision/order, Rule 35 deals with its despatch. Both Section 37C and Rule 35 will, therefore, have to be complied with. Since there is no proof of even the tender or delivery of the letter enclosing a copy of the order to the addressee by post, the deeming fiction in sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is not attracted in the present case. In other words, the respondents have not discharged the initial burden of showing that the order dated 22-7-1997 was in fact sent by the registered post to the appellant as contended by them. In our view, the Tribunal erred in examining whether there was any record 'of the order being returned undelivered to the addressee'. The Tribunal ought to have first examined whether in fact the order was tendered or delivered by post to the addressee as required by the law. We, accordingly, set aside the impugned order dated 15-7-2003 passed by the CESTAT. To avoid any further delay in deciding the appeal, and considering the fact that the appellant has, pursuant to the order of this Court, deposited the entire amount of duty and penalty demanded, we restore the Appeal of the file of the CESTAT. The parties will now appear before the CESTAT on 2-1-2007 and the CESTAT may pass appropriate orders for fixing a date of hearing of the appeal. The appeal is accordingly allowed with the above directions. There will be no order as to costs. The Registry is directed to send a certified copy of this order to the Registrar, CESTAT within a period of two weeks from today.
Issues Involved:
1. Whether the CESTAT's order was properly served on the appellant under Section 37C of the Central Excise Act, 1944. 2. Whether the delay in filing the restoration application by the appellant should be condoned. 3. Whether the case involves a substantial question of law justifying an appeal to the High Court under Section 35G of the Act. Issue-wise Detailed Analysis: 1. Proper Service of CESTAT's Order: The appellant contended that the CESTAT's order dated 22.7.1997 was never received, as the notice of hearing was not received due to the unit being closed since 1991 and the advocate's residence being vacant. The Tribunal dismissed the restoration application on the grounds that the order was dispatched by registered post on 30.7.1997, and there was no record of it being returned undelivered. However, the respondent failed to provide a postal receipt or an acknowledgment card signed by the appellant. The Court held that Section 37C of the Act, which mandates service of decisions, applies to CESTAT orders. The initial burden of proof lies with the sender to show that the notice was sent by registered post. Since the respondent did not provide proof of dispatch, the deeming fiction of service under Section 37C was not applicable. The Tribunal should have first examined whether the order was tendered or delivered by post as required by law. 2. Delay in Filing the Restoration Application: The appellant filed the restoration application nearly six years after the dismissal of the appeal, citing lack of knowledge about the dismissal until receiving a letter from the Central Excise office in April 2003. The Tribunal dismissed the application due to the long delay. However, the Court found that the lack of proof of service of the CESTAT's order on the appellant justified the delay in filing the restoration application. Given that the appellant had deposited the demanded amount as directed by the Court, the appeal was restored to the CESTAT's file for a fresh hearing. 3. Substantial Question of Law: The respondent argued that the appeal did not involve a substantial question of law, as Section 37C did not apply to CESTAT orders, which are governed by Section 35D and Rule 35 of the CEGAT (Procedure) Rules, 1982. The Court disagreed, holding that the expression "decisions" in Section 37C includes CESTAT decisions. The Court found that the case raised a substantial question of law regarding the applicability of Section 37C to CESTAT orders and the mandatory requirement of service. This interpretation harmonizes Rule 35 with Section 37C, ensuring both dispatch and service requirements are met. Conclusion: The High Court set aside the impugned order of the CESTAT dated 15.7.2003 and restored the appeal to the CESTAT's file, directing the parties to appear before the CESTAT for a fresh hearing. The appeal was allowed, with no order as to costs, and the Registry was directed to send a certified copy of the order to the Registrar, CESTAT.
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