2019 (9) TMI 422 - HC - Central Excise

Condonation of delay in filing appeal - Service of order - proper mode of communication - appeal dismissed on the ground of time limitation - whether the Tribunal was justified in declining to condone the delay when the Excise and Customs Department had failed to establish that the Appellate order dated 08/02/2012 was tendered to the Appellant by registered post as mandated under Section 37(1)(a) of the Act of 1944? HELD THAT - The stipulation or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 which appears in Sub-clause (a) was inserted by Act No.17 of 2013, Section 100(i) w.e.f. 10/05/2013. Thus, before said amendment/insertion, imperative it was for the department to have sent/tendered the decision dated 06/02/2012 by registered post with acknowledgment due - Various correspondence on record entered into between the Appellant with the Postal Department and also the findings arrived at by the Tribunal reveals that the order dated 06/02/2012 was tendered through speed post which apparently was not the mode of service prior to 10/05/2013. The Tribunal ought to have considered the fact that the copy of final order was delivered vide letter No.ST/R-I/GWL/DAR-129/2006-07/171, dated 17/02/2014 and not on 24/02/2012. The Tribunal having glossed over the same, the impugned order cannot be given the stamp of approval. The matter is relegated to the Tribunal for its decision on merit - Substantial questions of law is answered in favour of the Assessee and against the Revenue.

Issues:
1. Appeal against the order of Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal on the ground of limitation.
2. Liability of the Appellant for Service Tax, interest, and penalty under the Finance Act, 1994.
3. Tribunal's rejection of the application for condonation of delay.
4. Justification of declining to condone the delay in serving the appellate order.
5. Interpretation of Section 37(1)(a) of the Central Excise Act, 1944.

Analysis:

1. The appeal was filed against the Tribunal's order upholding the Appellant's liability for Service Tax, interest, and penalty under the Finance Act, 1994. The Tribunal rejected the application for condonation of delay, citing insufficient explanation for the delay in filing the appeal.

2. The key issue was whether the Tribunal was justified in declining to condone the delay. The Appellant argued that the Excise and Customs Department failed to establish that the appellate order was tendered to them as required by Section 37(1)(a) of the Act of 1944.

3. Section 37(1)(a) mandates the service of decisions or orders by tendering them, sending them by registered post with acknowledgment due, or by speed post with proof of delivery. An amendment in 2013 allowed for service by speed post with proof of delivery. The Appellant contended that the order in question was sent through speed post, which was not the prescribed mode of service before the 2013 amendment.

4. The Court found that the order was delivered through speed post, not registered post as required by law at the time. As a result, the Tribunal's decision was set aside, and the matter was remanded to the Tribunal for a decision on merit.

5. The Court answered the substantial questions of law in favor of the Assessee, emphasizing the importance of adhering to the statutory requirements for service of orders. No costs were awarded in the judgment.

This detailed analysis highlights the core issues raised in the legal judgment, focusing on the Tribunal's decision to reject the appeal based on delay and the interpretation of the relevant provisions of the Central Excise Act, 1944.

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