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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 ..... t. Ltd. can be differentiated on fact. The mode of communication of order is relevant only so long as the actual receipt of the communication is not disputed. Once the receipt of communication is not disputed, the mode of communication becomes irrelevant - the appeal dismissed - decided against appellant. - APPEAL No. ST/86003/15, Appln. No. ST/MA(Ors)/93081/16 - Order No. M/90453/16/SMB and A/90454/16/SMB - Dated:- 9-9-2016 - Mr. Raju, Member (Technical) Shri. Vinay Jain, CA for appellant Shri. A.B. Kulgod, Asst. Comm. (AR) for respondent Per: Raju 1. The appellant, M/s. Induction Hardening Co. are in appeal against the order of the Commissioner (Appeals) rejecting their appeal as barred by limitation on account of delay. The appellant have also filed a miscellaneous application seeking to include a new ground in their appeal. In the new ground it has been argued 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istered 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 the present case, the order is said to have been sent by speed post and there is no evidence of tendering the decision to the assessee. 6. In these circumstances, in our opinion the decision of the CESTAT that the requirements of Section 37C have been complied with cannot be accepted. As per Section 37C(1)(a) of the Central Excise Act, 1944, it was obligatory on the part of the Revenue, either to tender a copy of the decision to the assessee or to sent it by registered post with acknowledgment due to the assessee or its authorized agent. In the present case, neither of the above have been complied with by the Revenue. Accordingly, the contention of the assessee that a copy of the order of Commissioner of Central Excise (Appeals) was received for the first time on 26 th February 2010 would have to be accepted. Consequently, the decision of the CESTAT that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olumn (1) of the Schedule below and the post offices specified in the corresponding entries in column (2) of the said Schedule for delivery under the Inland Speed Post Service subject to the following conditions namely : (1) Inland Speed Post Service shall be available in respect of all classes of mails, which can be sent by the registered service : xxx xxx xxx xxx xxx xxx xxx In view of Section 28 of the Indian Post Office Act, 1898 read with Rule 66B of Indian Post Office Rules, 1933 (as inserted vide Gazette Notification dated 24 th 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 art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any postal packages on behalf of the company. After such order was passed, a further affidavit came to be filed on behalf of the petitioner-company through its General Manager, tendering an unconditional apology for filing additional affidavit dated 21-11-2014 without verifying the detail factual position and seeking indulgence of the Court to withdraw the said additional affidavit dated 21-11-2014. The aforesaid facts are merely being recorded to indicate the manner in which the petitioner-company has sought to try and pass the blame on an employee in order to try and justify their admitted delay in filing of the appeal. 11. It appears that post amendment vide Finance Act, 2013 (17 of 2013) w.e.f. 10-5-2013, the following amendment came to be incorporated in Section 37C(1)(a) of the Central Excise Act, 1944 which is as follows : Section 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due [or by speed post with pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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