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TMI Blog2014 (7) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... department has produced proof of delivery by whatever mode the decision has been served. - Held that:- The observations of the High Court in the case of Union of India Vs. Kanti Tarafdar [1995 (9) TMI 75 - HIGH COURT AT CALCUTTA] are very clear and therefore the delivery by speed post where the proof is available also cannot be brought under the mode of dispatch of tender. Under these circumstances, in my opinion, Commissioner’s order that date of delivery has to be taken as the date of which speed post was delivered and dispatched by registered post or speed post does not make any difference is not correct. - matter remanded back to consider COD, stay application and appeal in accordance with law. - Decided in favour of assessee. - E/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order or dispatch by speed post can be considered as in accordance with provisions of Section 37C of Central Excise Act 1944 or not. When the matter was heard for considerable time on 27.12.2013, the learned counsel sought time to show evidence that the meaning of tender is personal delivery and nothing else. Today when the matter was called, learned counsel has produced the decision of the Hon ble High Court of Calcutta in the case of Union of India Vs. Kanti Tarafdar [1997 (91) E.L.T. 51 (Cal.)] wherein the meaning of tender has been discussed. Both sides were heard in considerable detail and several decisions were cited. 5. Section 37C of Central Excise Act 1944 which is the subject matter of dispute provides that any deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served the order-in-original on the appellant in accordance with law. This view is supported by the decision cited by the learned counsel. We are not impressed with the reliance placed by the Dy. Commissioner (AR) on Milan Podder (supra) which is a decision in relation to Section 282 of the Income-tax Act. That provision inter alia required a notice/summons/requisition/order/other communication to be sent to the person concern by post . The question considered by the Hon ble High Court was whether dispatch by speed post to would suffice the purpose of dispatch by post . This question was answered in the affirmative, but this can hardly come to support the department s case before us inasmuch as the question which we have already answered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erefore when the department has evidence of delivery, the mode of dispatch would not be relevant and the word tendering would cover the situation. However today the learned counsel has submitted the decision of the Hon ble High Court of Calcutta in the case of Kanti Tarafdar (supra) which clearly takes the view that tendering means it is tendered by hand (personal service). This observation is contained in paragraph 37 which is very clear in which Hon ble High Court observed under Section 153 of the Act, service is either by personal delivery (tender) or by putting it into transmission by registered post in case both are possible . Paragraph 13 also is relevant in which Hon ble High Court observed the person serving such notice has tw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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