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2014 (11) TMI 630 - AT - Service TaxCondonation of delay - Non receipt of SCN - Revenue filed Misc. application for modification of an order where tribunal had condoned the delay of four years and nine months in filing appeal - Held that - there is no evidence that the order sent by speed post was ever delivered to the appellants or it was received back - It is pertinent to note that when the Central Excise statute prescribes a procedure regarding the manner in which the decisions/orders/summons are to be served, a reference to the General Clauses Act would not be helpful in the wake of the clear cut and unambiguous decisions of the Hon ble High Courts referred 2012 (6) TMI 304 - BOMBAY HIGH COURT and 2013 (4) TMI 131 - ALLAHABAD HIGH COURT as well as in the impugned order with regard to the service by speed post in the context of Section 37C ibid. As an aside, it can also be successfully contended that if speed post was to be treated or intended to be treated by the legislature as equivalent to the registered post the legislature would not have amended Section 37C in the year 2011 to specifically include speed post as one of the prescribed means of service of decision, orders and summons. - Decided against the revenue.
Issues:
1. Modification of the Misc. Order condoning delay in filing appeal. 2. Dispute regarding the validity of service of Show Cause Notice and Order-in-Original through speed post. 3. Interpretation of Section 37C of the Central Excise Act, 1944 in relation to service of orders. 4. Comparison of judgments by different High Courts on the equivalence of registered post and speed post for service. 5. Request for modification of the stay order regarding delivery of notices for personal hearing. Issue 1: Modification of the Misc. Order The Revenue filed an application seeking modification of the Misc. Order condoning a delay in filing the appeal. The grounds for modification included the misrepresentation by the appellants regarding the receipt of the Show Cause Notice and the Order-in-Original. The Revenue argued that the Tribunal had erred in condoning the delay based on incorrect information provided by the appellants. Issue 2: Validity of Service through Speed Post The appellants contended that the Order-in-Original sent by speed post did not meet the requirements of Section 37C of the Central Excise Act, 1944 as there was no evidence of delivery. They cited judgments, including one by the Bombay High Court, to support their argument that service by speed post was insufficient. The appellants emphasized the importance of actual delivery to fulfill the legal obligations of service. Issue 3: Interpretation of Section 37C The argument revolved around the interpretation of Section 37C in light of conflicting judgments by different High Courts. The Revenue relied on the Allahabad High Court's decision equating registered post and speed post as valid methods of service. However, the Tribunal noted the Bombay High Court's stance that speed post alone did not comply with the statutory requirements of Section 37C. Issue 4: Equivalence of Registered Post and Speed Post The Tribunal analyzed the judgments of various High Courts regarding the equivalence of registered post and speed post for service purposes. While the Allahabad High Court viewed them as the same method of service, the Bombay High Court and other authorities disagreed. The Tribunal emphasized the need for actual delivery to fulfill legal service requirements. Issue 5: Modification of Stay Order Regarding the request to modify the stay order, the Tribunal found that the Revenue's application lacked clarity and sufficient grounds. The Tribunal noted that the stay order did not grant waiver of pre-deposit or stay recovery, and the Revenue failed to specify the modifications sought. Consequently, the Tribunal rejected the Revenue's application for modification of the stay order. In conclusion, the Tribunal dismissed the Revenue's application for modification, emphasizing the importance of proper service of orders and the necessity of meeting statutory requirements for service under the Central Excise Act, 1944.
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