9911796707
TMI Blog2016 (8) TMI 790X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) disposed of by a common order, filed by the Revenue, appeal No.246/2011 and appeal filed by the present appellant No.492/2011 and also against the order passed by the learned Custom Excise and Service Tax Appellate Tribunal (hereinafter called 'the Appellate Tribunal') in Service Tax Appeal No.1803/2011. 2. Inadvertently, this appeal was admitted without framing substantial question of law, and therefore, on 23.02.2016, the respondents/department was granted two weeks time to file a counter affidavit about the receipt of copy of the order dated 22.09.2010. The affidavit was filed by the department on 10.03.2016. 3. In this appeal, following substantial question of law arises for consideration :- "Whether the learned Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Finance Act, 1994 and also imposed interest and penalty thereon. Copy of the order passed in original dated 30.03.2010 was not received by the appellant. 6. As the adjudicating authority did not impose any penalty under Section 76 of Finance Act, 1994, therefore, a review order was passed by Commissioner, Customs & Central Excise, Indore which is marked as (Annexure A/4). The Revenue went an appeal against these two orders which was registered as appeal No.246/2010 and respondents received notice on 22.09.2010. According to the appellant prior to this date, he did not receive any notice about the orders passed against him. The authorized representative of the appellant appeared for personal hearing on 26.11.2010 and submitted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 10.05.2008, is not applicable, therefore to this extent the Adjudicating Authority has erred in his impugned Order by neither imposing penalty under Section 76 of the Finance Act, 1994 nor having given any finding to waive the same in view of the provisions of Section 80 of the Finance Act, 1994. Thus, I agree with the contention of appellant and hold that penalty under Section 76 of the Finance Act, 1994 is imposable on the respondent the impugned Order is modifiable to this extent and accordingly I hold. 7.2 Further, I observe that after filing of Appeal No.246/2010 by the revenue on 10.06.2010, copy of the appeal, copy of the impugned Order and copy of the review Order were sent to the respondent on 17.06.2010, with directions to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. (Dictated and pronounce in the Open Court)" 8. The respondent on behalf of the department filed certain additional documents on record showing that the order in original was sent to the appellant by speed post and also letters were written to the concerning Post Office for supplying the information of delivery of speed post to the appellant. However, no reply was received from the Post Office. 9. The statutory provisions in respect of service of decisions, orders, summons etc. incorporated in Section 37 of Central Excise Act, 1944 (hereinafter called 'the Act') as under :- "37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons ornotice issued under this act or the rules made thereu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary coarse of post." 11. Learned counsel for the appellant submits that speed post sent by the respondent, never reached to their office. In response, the learned counsel cites the judgment of Punjab and Hariyana High Court in case of Commissioner of Central Excise, Ludhiana vs. Mohan Bottling Company (Pvt.) Ltd.; 2010 (255) E.L.T. 321 (P&H). In this case, copy of the order was sent by registered post, and therefore, considering the provisions of Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not filed within 45 days of the notice received by them. According to provisions of Order 41 Rule 22 of CPC, cross objections should be filed after receiving notice of appeal within 30 days. However, in the Act, no such time period is prescribed. Time fixed by the learned Appellate Authority was fixed by him and there was no statutory provisions against this time period fixed by him and accordingly, when the authorized representative appeared before the Appellate Authority on 26.11.2010 and he was granted time by the authority to file cross-objections within one week, which was filed on 03.12.2010, and which were taken on record, it cannot be said that cross objections filed by the appellant was not filed in time and were time barred. Accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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