2016 (6) TMI 996 - HC - Central Excise

Condonation of delay in filing an appeal before the tribunal - it was submitted that the order against which appeal was preferred before the Tribunal had not been served on the appellant-assessee - The appellant was not aware of the order. - Held that - The perusal of section 37C(1) of the Act of 1944 reveals mode of dispatch and at the relevant time it could have been sent through registered post but with acknowledgement due. There is nothing on record to show that after sending copy of the order through registered post the acknowledgment due was produced. In view of above mandate of section 37C(1) of the Act of 1944 has not been looked into by the appellate tribunal. In absence of service of copy of the order in the manner prescribed under section 37C(1) of the Act delay cannot be attributed towards the appellant for challenge of the order. - Delay condoned. - Matter restored before the tribunal.

Summary

Issues:
1. Delay in filing the appeal before the Tribunal due to non-service of the order.
2. Consideration of condonation of delay under section 37C(1) of the Central Excise Act, 1944.
3. Interpretation of section 37C(1) regarding service of decisions, orders, summons, etc.
4. Dismissal of the application for condonation of delay by the appellate tribunal.
5. Justification for condoning the delay in filing the appeal.
6. Setting aside the impugned order and remanding the matter back to the appellate tribunal for a decision on merit.

Detailed Analysis:

1. The appellant filed an appeal before the Tribunal, which was delayed by 3214 days due to non-service of the order. The appellant claimed that the order was not served on them, and the delay in filing the appeal should be considered in light of this fact.

2. The appellant argued that the delay in filing the appeal should be condoned under section 37C(1) of the Central Excise Act, 1944. This section specifies the mode of service of decisions, orders, summons, etc., and mandates service by registered post with acknowledgment due.

3. The Court found that the appellate tribunal did not consider the mandate of section 37C(1) of the Act, which requires proof of service in the prescribed manner. The lack of acknowledgment due for the registered post sent to the appellant's address raised doubts about the service of the order.

4. The appellate tribunal dismissed the application for condonation of delay, citing that the appellant was aware of the order and had requested a copy to be sent to their address. However, the Court noted that without proper service as per section 37C(1), the delay cannot be attributed to the appellant.

5. The Court, considering the arguments and legal provisions, found substance in the appeal and set aside the impugned order dated 3.10.2008. The delay in filing the appeal was condoned, and the matter was remanded back to the appellate tribunal for a decision on merit.

6. The judgment concluded by disposing of the appeal, highlighting the importance of proper service of orders and decisions as per the statutory provisions and emphasizing the need for a fair consideration of condonation of delay in legal proceedings.