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TMI Blog2013 (1) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 37-C has no applicability to the facts of the present case in as much Sub Section (1) (a) contemplates that the notices issued under the Act shall be served by tendering the notice by registered post to the person intended or its authorized agent with acknowledgment due. Sub Clause (b) and (c) would be applicable in the event, notice cannot be served in terms of Sub Clause (a). Once, the appellant has not removed the objections within a reasonable period of the defective memo of appeals, the memorandum of appeal has been rightly rejected being barred by limitation. Since, the appellant has taken more than six years to remove the defects in the appeal, it is thus beyond the period of limitation - against assessee. - CEA No. 19 of 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 30.6.2005 and 22.9.2005. 4. The appellant, thereafter, filed an appeal along with an application for condonation of delay. It is the said application, which has been declined by the Tribunal vide the order impugned in the present appeal. 5. Learned counsel for the appellant contends that the defect memos were not received by the appellant as such defects memos remained un-delivered. Therefore, once the memo of appeal was filed within a period of limitation, the non-communication of defect memo will not lead to delay, requiring condonation which may require even any application for condonation. In support of such arguments, learned counsel for the appellant relies upon Section 37-C of the Act which reads as under: - 6. 37-C Service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 (26) S.T.R. 299, Amidev Agro Care Pvt. Ltd. vs. Union of India. 8. The argument of learned counsel for the appellant is that in terms of Section 37C(1)(c) of the Act, the notice is required to be affixed on the notice board of the officer or authority who or which passed such decision and in terms of clause (b) the notice was required to be affixed on the conspicuous part of the factory or warehouse or other place of business or usual place or residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; if the notice issued to the appellant could not be served in terms of clause (a) of Section 37C(1) of the Act. 9. We have heard learned counsel for the appellant but find no merit in the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ken to have known the contents of the document sought to be served upon him without anything more. Similar presumption is raised under illustration (f) to Section 114 of the Indian Evidence Act whereunder it is stated that the court may presume that the common course of business has been followed in a particular case, that is to say, when a letter is sent by post by prepaying and properly addressing it the same has been received by the addressee. Undoubtedly, the presumptions both under Section 27 of the General Clauses Act as well as under Section 114 of the Evidence Act are rebuttable but in the absence of proof to the contrary the presumption of proper service or effective service on the addressee would arise. In the instant case, additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is open to the party concerned to place evidence before the court to rebut the presumption by showing that the address mentioned on the cover was incorrect or that the postal authorities never tendered the registered letter to him . The burden to rebut the presumption lies on the party, challenging the factum of service. (emphasis added) A similar view has been reiterated by this Court in (1996) 7 SCC 275, CIT v. V.K. Gururaj and (1997) 2 SCC 637, Shimla Development Authority v. Santosh Sharma. 55. In AIR 1918 PC 102, Harihar Banerji v. Ramsashi Roy, a similar view had been taken by the Privy Council, referring to Illustration (f) of Section 114 of the Evidence Act, 1872. 11. Clauses (b) and (c) of Sub Section (1) of S ..... X X X X Extracts X X X X X X X X Extracts X X X X
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