2010 (5) TMI 169 - HC - Central Excise

Service of order period of limitation for filing of an appeal - manufacture of aerated water falling under the head No.22.01 and 22.02 of the Schedule to the Central Excise Tariff Act, 1985 - Larger Bench of the Tribunal vide order dated 28.8.2006 replied the reference on the ground that despatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery of speed post. Order of the Appellate Tribunal is under challenge before us in the writ petition. Held that - that it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. It is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. In the present matter, assessee failed to discharge his burden and sending the order by registered post at the correct address is sufficient compliance. decided in favor of revenue

Summary

Issues:
Challenge to order of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) regarding service of adjudication order through registered post for appeal timeline determination.

Analysis:
The petitioner filed a writ petition challenging the order passed by CESTAT for not including transportation charges and notional interest in the assessable value of aerated waters, contravening Section 4 of the Central Excise Act, 1944. The Commissioner confirmed the duty demand and imposed a penalty, leading to an appeal by the respondent. The issue revolved around the timeline for filing the appeal, with the Revenue contending that it was time-barred. The Tribunal's Larger Bench held that despatching the order by registered post without proof of actual delivery did not constitute valid service. The High Court analyzed Section 37C of the 1944 Act, emphasizing that despatching the order by registered post to the correct address suffices for service, as per sub-section (2). Referring to legal precedents, the court highlighted the presumption of service when the correct address is used for registered post. The court concluded that sending the order by registered post to the correct address complies with Section 37C, placing the burden on the assessee to prove non-service. As the assessee failed to discharge this burden, the court allowed the writ petition, setting aside the impugned order.

This judgment clarifies the legal position regarding the service of decisions, orders, summons, etc., under Section 37C of the Central Excise Act, 1944. It establishes that despatching the order by registered post to the correct address is deemed as service, unless proven otherwise by the recipient. The court emphasized the importance of the correct address and the presumption of service under relevant legal provisions and precedents. The judgment underscores the burden on the recipient to rebut the presumption of service with cogent evidence. Overall, the decision provides clarity on the interpretation and application of Section 37C in cases of service through registered post, ensuring procedural compliance and fairness in legal proceedings.