2013 (1) TMI 531 - HC - Central Excise

Application for condonation of delay dismissed - Whether the Tribunal could dismiss the appeal when defect memos were returned back to the registry? - Held that - The appellant has filed memo of appeal disclosing a address. The defect memos were sent under registered A.D. post on the addresses so given. Once, the letter has been sent under registered A.D. post, the same is presumed to be delivered in terms of Section 27 of the General Clauses Act 1897. See Harcharan Singh v. Shivrani 1981 (2) TMI 199 - SUPREME COURT Clauses (b) and (c) of Sub Section (1) of Section 37-C has no applicability to the facts of the present case in as much Sub Section (1) (a) contemplates that the notices issued under the Act shall be served by tendering the notice by registered post to the person intended or its authorized agent with acknowledgment due. Sub Clause (b) and (c) would be applicable in the event, notice cannot be served in terms of Sub Clause (a). Once, the appellant has not removed the objections within a reasonable period of the defective memo of appeals, the memorandum of appeal has been rightly rejected being barred by limitation. Since, the appellant has taken more than six years to remove the defects in the appeal, it is thus beyond the period of limitation - against assessee.

Summary

Issues:
1. Challenge to an order of the Customs Excise and Service Tax Appellate Tribunal dismissing an application for condonation of delay.
2. Substantial questions of law raised:
- Perversity and contradiction in the impugned order.
- Justification of dismissing the application for condonation of delay and main appeal without prescribed period of refilling.
- Dismissal of appeal due to defect memos being returned.

Analysis:
1. The appellant challenged the Tribunal's order dismissing an application for condonation of delay of six years. The appellant raised substantial questions of law regarding the perversity of the order, justification for dismissal without prescribed period of refilling, and the dismissal based on returned defect memos.

2. The circumstances leading to the appeal involved the Central Excise Commissionerate confirming a demand and imposing a penalty. The appellant's appeal was dismissed earlier for non-compliance with pre-deposit conditions. The appellant filed multiple appeals with defect memos returned, eventually leading to the current appeal.

3. The appellant argued that non-receipt of defect memos due to remaining undelivered did not cause a delay. Citing Section 37-C of the Act, the appellant contended that once the memo of appeal was filed within the limitation period, non-communication of defect memos should not require condonation.

4. The High Court analyzed the service of notices under Section 37-C and referred to relevant case laws. The court emphasized that once a letter is sent under registered post, it is presumed to be delivered. The court cited precedents to support the presumption of proper service unless proven otherwise.

5. The court further discussed the applicability of Section 37-C to the case, highlighting that the notices of defect memos were sent by registered post to the addresses provided by the appellant. Consequently, the court concluded that the appeal was rightly rejected due to being beyond the limitation period.

6. Considering the appellant's delay in addressing the defects over six years and previous non-compliance with pre-deposit conditions, the court dismissed the appeal. The court found no substantial question of law and denied any indulgence based on the appellant's conduct over the years.

In conclusion, the High Court dismissed the appeal challenging the Tribunal's order, emphasizing the importance of timely compliance with procedural requirements and upholding the presumption of proper service of notices sent via registered post.