2016 (11) TMI 20 - AT - Service Tax

Maintainability of appeal limitation - order not communicated to the concerned person - mode of communication of order - Section 37C (1) (A) of the Act - service of order by speed post is not a valid service - reliance placed on the decision of AMIDEV AGRO CARE PVT LTD Versus UNION OF INDIA AND OTHERS 2012 (6) TMI 304 - BOMBAY HIGH COURT where it was held that As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. - Held that - in the case of Amidev Agro Care Pvt. Ltd. the communication dispatched by speed post was not received by the appellants whereas in the instant case it has been admitted by the appellant that the communication was received by them, although it was received by watchman and it was not delivered to the concerned people at the right time. Once it is admitted that the order has been received by the appellant, the decision of Hon ble High Court of Bombay in the case of Amidev Agro Care Pvt. Ltd. can be differentiated on fact. The mode of communication of order is relevant only so long as the actual receipt of the communication is not disputed. Once the receipt of communication is not disputed, the mode of communication becomes irrelevant - the appeal dismissed - decided against appellant.

Summary

Issues:
1. Appeal against order of Commissioner (Appeals) rejected as barred by limitation due to delay.
2. Appellant filed a miscellaneous application seeking to include a new ground in their appeal regarding service of order by speed post.
3. Argument on validity of service of order by speed post and compliance with Section 37C.
4. Interpretation of Section 37C(1)(a) regarding service of decisions/orders.
5. Consideration of judgments by High Courts in similar cases.
6. Analysis of legislative amendment to Section 37C(1)(a) w.e.f. 10-5-2013.
7. Differentiation of facts in present case from precedent case of Amidev Agro Care Pvt. Ltd.

Analysis:
1. The appellant, M/s. Induction Hardening Co., appealed against the order of the Commissioner (Appeals) rejecting their appeal as time-barred due to delay. They also filed a miscellaneous application to introduce a new ground related to the service of the order by speed post, arguing that it did not comply with Section 37C(1)(a) of the Act. The appellant contended that the order was received, but the mode of communication was invalid, citing a decision of the Hon'ble High Court of Bombay in Amidev Agro Care Pvt. Ltd.

2. The learned Counsel for the appellant emphasized that the order was sent by speed post and received by the watchman, but not timely delivered to the concerned office bearer. They argued that service by speed post did not meet the requirements of Section 37C(1)(a), which mandates service by registered post with acknowledgment due. The Tribunal agreed that the Revenue failed to comply with the statutory provision, leading to acceptance of the appellant's claim that the order was received only on 26th February 2010, thus rejecting the time-barred appeal determination.

3. The Revenue argued that the High Court of Orissa in the case of Jay Balaji Jyoti Steel Ltd. considered the mode of communication in similar cases. They highlighted the definition of "registered post" under the Indian Post Office Act and the introduction of Inland Speed Post Service, asserting that both registered post and speed post fulfill the requirements of Section 28. The Revenue contended that the amendment to Section 37C(1)(a) in 2013, adding speed post as a valid mode of service, operates retrospectively.

4. The Tribunal analyzed the amendments to Section 37C(1)(a) and the impact of the legislative change, emphasizing the retrospective nature of the amendment. The judgment in Amidev Agro Care Pvt. Ltd. was deemed relevant and binding, as it addressed jurisdictional issues. The Tribunal upheld the decision of the High Court of Orissa in Jay Balaji Jyoti Steel Ltd., as affirmed by the Supreme Court, leading to the dismissal of the appeal based on the acknowledgment of receipt of the order by the appellant.

5. In conclusion, the Tribunal dismissed the appeal, emphasizing that once the receipt of communication is acknowledged, the mode of communication becomes secondary. The differentiation of facts from the precedent case of Amidev Agro Care Pvt. Ltd. was crucial in determining the outcome of the appeal. The judgment was pronounced on 9/9/16.