2006 (7) TMI 18 - AT - Central Excise

Central Excise Service of orders Mode of delivery (1) Despatch by speed post/registered post not amounts to valid service when proof of delivery absent and simultaneous affixing of order on notice board would also not serve the legal requirement (2) Taxing statutes

Summary

Issues Involved:

1. Validity of service of adjudication order by speed post under Section 153(a) of the Customs Act, 1962 without proof of actual delivery.
2. Sufficiency of simultaneous affixing of the order on the notice board while dispatching it by speed post under Section 153(b) of the Customs Act.

Issue-wise Detailed Analysis:

1. Validity of Service by Speed Post under Section 153(a):

The primary issue was whether the dispatch of an adjudication order by speed post qualifies as valid service under Section 153(a) of the Customs Act, 1962, in the absence of proof of actual delivery. The appellant argued that the statutory provisions necessitate physical receipt of the order by the appellant for it to be considered served. They cited multiple case laws to support their stance, emphasizing that the time limit for filing an appeal should start only upon actual receipt of the order. The appellant's counsel also referenced Section 37C of the Central Excise Act, 1944, which similarly requires physical receipt of the order.

The tribunal considered these arguments and the relevant statutory provisions. Section 153(a) of the Customs Act and Section 37C of the Central Excise Act both specify that service can be effected by registered post. However, the tribunal noted that mere dispatch to the post office does not guarantee that the order reaches the appellant. The tribunal concluded that it would be presumptive to consider the service complete upon dispatch, as it might deprive the assessee of their right to appeal.

The tribunal emphasized that the legislative intent behind these sections is to ensure the assessee is aware of the order. Therefore, dispatch by speed post without proof of actual delivery does not amount to valid service under Section 153(a).

2. Simultaneous Affixing on Notice Board under Section 153(b):

The second issue was whether simultaneous affixing of the order on the notice board while dispatching it by speed post constitutes sufficient compliance with Section 153(b) of the Customs Act. The tribunal examined the statutory language, which provides alternate methods of service if the initial method fails. The tribunal found that simultaneous affixing on the notice board does not meet the legal requirement, as the statute contemplates affixing only after the failure of the first two modes of service.

Conclusion:

The tribunal answered the reference as follows:
- Dispatch of an adjudication order by speed post/registered post does not constitute valid service without proof of actual delivery.
- Simultaneous affixing of the order on the notice board is not sufficient compliance with Section 153(b) of the Customs Act.

The tribunal's decision underscores the necessity of actual delivery or proof thereof to ensure the assessee's right to appeal is preserved. The appeals will now be placed before the concerned Division Bench for a decision on merits in light of this judgment and in accordance with the law.

Appreciation:

The tribunal acknowledged the assistance rendered by the amicus curiae in this case.

Pronounced on 28th August, 2006.