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TMI Blog2016 (11) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... gued that the order-in-original was dispatched to the appellant by speed post during the period when sending of order by speed post was not sufficient compliance to the provisions of Section 37C (1) (A) of the Act. Aggrieved by the said order, the appellant are before this Tribunal. 2. The learned Counsel for the appellant argued that the order was sent by speed post and was received by the watchman who had in turn given to the office bearer in the year 2013. No date has been mentioned as to when the order was given to the concerned office bearer. It has been argued that the said order-in-original was received and no reply has been filed by the appellant company to the lower authorities nor they appeared for personal hearing. It was argued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1)." 5. As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. Admittedly in the present case, a copy of the order has not been sent by registered post. In these circumstances, it could not be said that the requirement of Section 37C has been complied with. The CESTAT was wrong in relying upon the judgment of the P & H High Court in the case of Mohan Bottling Company (P) Limited (supra), as in that case a copy of the order was sent by registered post, whereas in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner, it appears that whereas the impugned order has been communicated by "speed post", in the case of Amidev Agro Care Pvt. Ltd. (supra), Commissioner of Central Excise, Ludhiana (supra) and in the case of Metal Powder Co. Ltd. (supra), the order was communicated by "Telegram". In all these three cases, the Hon'ble High Court came to hold that sending of an order in a manner not provided under Section 37(C) amounts to no evidence of tendering of the decision to the assessee. 6. At this juncture, it would become most relevant to take note of the fact that in none of the judgments cited hereinabove the Hon'ble High Courts have taken into consideration the definition of "registered post" which has been provided under Section 28 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Rule 66B of Indian Post Office Rules, 1933 (as inserted vide Gazette Notification dated 24th July, 1986), any postal article i.e. registered at the post office from which it is posted, and a receipt issued in respect of such article is to be treated as "registered post". Both in the case of "registered post" as well as "speed post", the articles when delivered to the post offices, receipts thereof are required to be issued and consequently, both "speed post" and 'registered post' satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all is the charges payable are normally higher for "speed post" as the name suggests the delivery of such articles a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dered view, merely clarificatory and hence, retrospective in its operation. 10. It would be relevant also to point out herein that an additional affidavit was filed by the petitioner-company on 21-11-2014 claiming therein that the employee who received speed post packet on behalf of the company, is a Class-IV employee Miss Bengi Oram, who was not authorized by the company to do so and consequently, the company had initiated a disciplinary [action] against her. When such affidavit was filed, this Court directed vide its order dated 5-12-2014 calling upon the General Manager (Accounts) to file a further affidavit before this Court indicating as to whether the said Class-IV employee, Miss Bengi Oram, had in the past ever received postal packa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his authorized agent, if any." On perusal of the aforesaid amended provision, it is clear that after the words "sending it by registered post with acknowledgment due" the words i.e. "or by speed post with proof of delivery" has been inserted. The aforesaid amendment itself would clearly shows that the amendment sought to be made is not only clarificatory The SLP filed against the said decision was dismissed after condoning the delay by the Hon'ble Apex Court as reported in 2015 (40) STR J133 (SC). 4. I have gone through the rival submissions. I find that the decision in the case of Amidev Agro Care Pvt. Ltd. (supra) squarely covers the issue and is of jurisdictional High Court. The decision of the Hon'ble High Court of Orissa in the case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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