9911796707
TMI Blog1990 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... tification No. 55/75 as amended vide Notification No. 104/82 dated 28-2-1982, a show cause notice dated 11-5-1983 was issued to the appellants to show cause as to why the appropriate duty should not be charged from them and after the usual adjudication proceedings the claim of the appellants for the benefit of Notification No. 55/75 dated 1-3-1975 as amended from time to time was disallowed and the Classification List was approved accordingly vide Adjudication Order (Order-in-Original) No. 53/CE/83 dated 6-6-1983 (issued on 7-6-1983) passed by the Asstt. Collector of Central Excise, Rohtak. Being dissatisfied with that order of the Assistant Collector, the appellants preferred their appeal before the Collector (Appeals), New Delhi, which was dismissed by him as time barred vide his common impugned order. Hence the present appeal No. E/339/88-D. 3. The other appeal No. E/338/88-D relates to the refund claim for Rs. 29,67,790.87 lodged by the appellants vide their application dated 25-11-1985 (received on 29-11-1985) for the duty paid by them on their products Malt Malt Extract from 27-8-1983 to 31-10-1985 on the ground that the Hon ble Delhi High Court vide its judgment dated 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them by the Asstt. Collector. It has been claimed by the appellant that the order in original was sent by the Asstt. Collector under his covering letter 20-8-1986 which they had received on 25-8-1986 against which they filed appeal on 24-11-1986. I have gone through the letter dated 20-8-1986. I find that the order in original No. 53-CE/83 was sent to the appellants on 7-6-1983. In order to determine whether the appeal was within time, the matter was referred to the Asstt. Collector Central Excise, Rohtak to report on the date of service of the said adjudication order on the appellants. The Asstt. Collector sent his reply under his letter dated 8-5-1987 stating that the entire matter has been checked up from the original file as well as the post office at Rohtak and Gurgaon. The order in original No. 53/CE/83 dated 6-6-1983 had been despatched vide C. No. V(68) form. I15/83/9413 dated 7-6-1983 to the assessee vide registered A.D. No. 4717 dated 7-6-1983. However, it has been learnt from the post office Rohtak and Gurgaon that such verification was not possible because the postal authorities do not maintain the records for more than one year. I less observe that since the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... natively in time. As regards the findings of the Collector (Appeals) that he referred the matter to the Assistant Collector to report the date of service of the said order on the appellants, Shri M.A. Rangaswamy vehemently contended that the Collector (Appeals) failed to call for the Register and the file of the Assistant Collector and also to disclose the same to the appellants before recording a finding that the impugned adjudication order was despatched to the appellants on 7-6-1983. At this stage the Bench on 31-10-1988 also felt it desirable to peruse the original record of the Assistant Collector and the Collector (Appeals) and accordingly directed the Departmental Representative to produce the same and also allow its inspection to the appellants (since according to the practice prevailing in the Tribunal, the original records of the authorities below are not summoned and the appeals are heard and decided on the basis of the paper book filed by the parties). On 6-12-1988 the Bench further directed the Department to produce the despatch register of Assistant Collector wherein the despatch of the impugned adjudication order was recorded. Ultimately the said record and the despa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... additional evidence to rebut the said presumption of the service of the said adjudication order. 7. In reply Mrs. V. Zutshi, learned SDR strongly defended the impugned order and submitted that the appellants are trying to take advantage of the Rules of the postal authorities relating to the destruction of the record of despatch of letters under Registered Ack Due for more than a year. In a nutshell she submitted that the appeal filed by the appellants before the Collector (Appeals) was hopelessly time barred and therefore, it was rightly rejected by him, but now the appellants are trying to cover up their own laches by taking the advantage of the destruction of the record maintained by the postal authorities beyond one year. As regards the affidavit of Shri U.B.S. Rao, Technical Director of the appellant company filed before the Tribunal, she submitted that it is an after-thought and was never filed before the Collector (Appeals). 8. We have perused the records and considered the submissions. The crucial question for our consideration in the instant appeal is as to whether the Collector (Appeals) was right in drawing the presumption that the said adjudication Order No. 53/83-CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ram Khullar v. Battu Mal, AIR 1976 Del. 111; M. Adambhai v. B. Ramdas, AIR 1975 Guj. 54. In the instant case from the record it is clear that the registered letter containing the disputed adjudication order was correctly addressed and was sent by registered post and therefore, a presumption arises under Section 27 of the General Clauses Act that it reached its destination at the proper time and was received by the appellants. However, the matter does not rest here because the said presumption under Section 27 of the General Clauses Act is rebuttable for, Section 27 of the General Clauses Act expressly provides that the service shall be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post unless the contrary is proved. (See M. Adambhai v. B. Ramdas, supra). In other words, a presumption of service arising under Section 27 of the General Clauses Act is a rebuttable one and can be rebutted by the addressee by tendering the evidence that the letter in question was never tendered to him and if such evidence is tendered by the addressee to dislodge the presumption, the onus shifts on the other side to establish by evidence that the serv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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