9911796707
TMI Blog2018 (1) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... 011, confirming (i) the demand of Service Tax of ₹ 24,51,435/- (Rupees twenty four lakhs fifty one thousand four hundred and thirty five only) from M/s.RU's Marketing and Creative Unit, Coimbatore - 8, under Section 73(2) of the Finance Act, 1994 read with proviso to Section 73(1); (ii) the demand for appropriate interest as applicable form them on the above demand under Section 75 and (iii) imposing a penalty of ₹ 24,51,435/- (Rupees twenty four lakhs fifty one thousand four hundred and thirty five only) on M/s.RU's Marketing and Creative Unit, Coimbatore - 8, under Section 78 of the Finance Act, 1994 2. Being aggrieved, the assessee has filed an appeal No.33 of 2012, before the Commissioner of Customs, Central Excise Service Tax (Appeals), Coimbatore. Adverting to the rival submissions, Commissioner of appeals, vide order dated 08.05.2013, has confirmed the order in original. Thereafter, the assessee/writ petitioner has filed an appeal before CESTAT, Madras, with an application to condone the delay under Section 5 of the Limitation Act, 1963 r/w Section 86(5) of the Finance Act, 1994. In the condonation application, the assessee has contended that he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authorised representative of the assessee. In the condonation application filed before CESTAT, Madras, the assessee/appellant has also enclosed a copy of the letter dated 29.12.2016 sent by M/s.Rajesh Kukreja Associates, wherein, they have stated that the order-in-appeal, was not received by them. 6. M/s.Rajesh Kukreja Associates, have also executed an affidavit dated 29.12.2016 to that effect. Contents of the affidavit of their authorised representative, are extracted hereunder 2. It state that M/s.Rajesh Kukreja Associates, have not received the Order-In-Appeal passed by the Hon'ble Commissioner (Appeals) in the case of M/s.RU'S Marketing and Creative Unit in the above referred appeal . 4. I state that the letter dated 04.06.2013 sent by Office of the Commissioner of Customs, Central Excise Service Tax (Appeals) along with Order-In-Appeal in the case of M/s.RU'S Marketing and Creative Unit has not been received by M/s.Rajesh Kukreja Associates 7. Thus, on the basis of the above averments and documents, before CESTAT, Madras, appellant/assessee has sought for a prayer to admit the appeal against the order-in-appeal vide No.CMB-CEX-000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, which is factually incorrect and an error apparent on the face of the record. 2. Whether the Tribunal was justified in law in holding that the Tribunal was not satisfied that the appellate order was not served on the appellant duly and appropriately under law, when in absence of order-in-Appeal served on the appellant and the same was acknowledged by the learned Commissioner (Appeals) on the facts and circumstances of the case. 10. It is trite law that reason for the delay, has primacy over length of delay. But the question to be considered is whether, CESTAT, Madras, has considered, as to whether, the assessee/appellant was served with the order in appeal, as contemplated under Section 37C(1) of the Central Excise Act, 1944, enabling the assessee to file an appeal within the period, before CESTAT, Madras, under Section 86(5) of the Finance Act, 1994. 11. Earlier, when the matter came up for hearing, while ordering notice to Mr.A.P.Srinivas, learned counsel appearing for the Commissioner of Service Tax, Coimbatore, we directed the department to produce the records relating to the service / communication of the order-in-appeal No.CMB-CEX-000-APP-183-13 dated 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. (iii) In Neha Cosmetics Vs. Commissioner of Central Excise, reported in 2007 (208) ELT 494 Del, at paragraph Nos.14 to 16, Delhi High Court, held as follows: 14. We are unable to agree with the submissions of the respondent. The wording of Section 37C does not exclude the orders passed by the CESTAT in appeal. The word ?service of decisions? occurring in the title of the Section and the word ?decisions? occurring throughout under Section 35C is, in our view, intended to govern the decisions handed down by the CESTAT as well. It is true that Rule 35D deals with the procedure to be followed by CESTAT, and the Rules of procedure have also been framed separately. However, Rule 35 of those rules are only supplementary to the statutory provisions. The Rules cannot supplant the statutory requirement under Section 37C which requires that the decisions passed under the Act, which in our view includes those passed by the CESTAT, shall be served on the parties in the manner indicated in that provision. Under Section 37C(2) of the Act, which is similar to Section 27 of the General Clauses Act, 1897 service of the decision is `deemed' on the date that such decision is ?tende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch, Sastri Bhavan, Haddows Road, Chennai-6, reported in 2009(238) ELT 413 (Mad) : 2009 (014) STR 0451 (Mad), a learned Single Judge of this Court, held as under: 12.... Hon'ble Supreme Court in Attabira Regulated Market Committee vs. Ganesh Rice Mills (1996(9) SCC 471), wherein, it had been held that when a notice had been sent and when neither the acknowledgement nor the unserved envelope had been received by the sender it would be deemed that the notice had been served on the addressee. 13...... a Division Bench of this Court in P.Bhoormal Tirupati Vs. Additional Collector of Customs, Madras 2000(126) E.L.T.65 (Mad.), wherein it had been held that while reading Section 153 of the Customs Act, 1962, along with Section 27 of the General Clauses Act, 1897, there would be a normal presumption of service, unless the contrary is proved. The service shall be deemed to have been properly effected when a letter properly addressed, pre-paid and posted by Registered Post. Proof to the contrary can only be shown to the limited extent of proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post. 14. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndian Post Office Rules, 1933, by a Gazette Notification issued by the Ministry of Communications Department of Posts), Government of India dated 24th July, 1986 introducing Inland, Speed Post Service by inserting Rules 66-B thereto which is quoted hereunder: Rule 66-B. INLAND SPEED POST SERVICE.- Inland Postal articles may be booked after obtaining receipts therefor, at the places specified in column(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 66-B 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 pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication of decisions/orders/summons to the parties. 12.... In Shyam Sunder and others vs. Ram Kumar and another, 2001(8) SCC 24, affirmed the judgment of apex Court earlier in the case of R. Rajagopal Reddy (dead) by Lrs. Ors. Vs. Padmini Chandrasekharan (dead) by Lrs., 1995 (2) SCC 630 to the following effect: Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended....A clarificatory amendment of this nature will have retrospective effect and therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. Following the judgment of the Hon'ble Supreme Court as noted hereinabove, we are of the considered view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeals filed by the appellant as time barred, as the statutory prescription for service of notice has not been complied with by the Department. 10. It is evident from Section 37C (1) (a) of the Act, prior to 10.5.13, service through speed post was not one of the modes of service of orders, decisions, summons, etc. On and from 10.5.13, speed post was made as one of the modes of service for orders, decisions, summons, etc., provided it is supported by proof of delivery. Therefore, it is clear that proof of service is mandatory for the service effected through speed post on and after 10.5.13, but prior to 10.5.13, service through speed post not being a recognised/approved mode of service as per the provisions of the Act, any service effected through speed post is not binding on the appellant/assessee. 11. It is trite law that limitation has to be reckoned only from the date when the actual service has been effected, subject to fulfilling the mandatory requirement of showing proof of delivery. In the case on hand, the service of notice was effected on the appellant only on 23.12.2011 and there is nothing on the record to show that it was served on 9.5.11. Further, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
