9911796707
TMI Blog2019 (4) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... d have been delivered within 15 to 20 days. The order dated 9 January, 2012, passed by the Adjudicating Authority, was not sent to the appellant by either of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. The Commissioner (Appeals) was, therefore, was not justified in observing that since the order was sent by speed post on 16 January 2012, it should be deemed to have been served on the appellant within 15-20 days from the date of dispatch. The appeal was required to be filed, within 3 months from the date of receipt of the decision or order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tember, 2012. It is said to have been sent to the Appellant by speed post on 28 September, 2012. The Commissioner (Appeals), on the basis of a report submitted by the Superintendent (STC) Service Tax Department that that the order was sent by speed post on 28 September, 2012, presumed that the order would have been served on the appellant within 15 or 20 days of the date of dispatch, since the report did not mention that the letter had returned undelivered. The Commissioner (Appeals), therefore, observed that since the appeal was filed on 14 July, 2014, there was a delay of approximately 914 days which could not be condoned in view of the decision of the Supreme Court in Singh Enterprises v/s CCE reported in 2008 (223) ELT 163 (SC). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e deemed to have been served on the appellant. 7. Learned Authorized Representative of the Department has, however, supported the impugned order and has placed reliance upon the decision of the Punjab and Haryana High Court in Commissioner of Central Excise, Ludhiana V/s Mohan Bottling Co. (P) Ltd. reported in 2010-TIOL-840- HC-P H-CX. 8. We have considered the submissions advanced by learned counsel for the appellant and learned Authorized Representative of the Department. 9. In the present case the order of the Adjudicating Authority is dated 26 September, 2012. Section 85 (3A) of the Finance Act that would, be applicable since the order was passed after 28 May, 2012, is reproduced:- 85 (3A). An appeal shall be presente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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-section (1). 11. Thus, the mode prescribed for service of an order is by tendering the order or sending it by registered post with acknowledgment due to the person for whom it was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Pvt. Ltd., which decision has been relied upon by the learned Authorized Representative. The relevant paragraphs of the judgment are reproduced below:- 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 registere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. 18. The Commissioner (Appeals) was, therefore, was not justified in observing that since the order was sent by speed post on 28 September 2012, it should be deemed to have been served on the appellant within 15-20 days from the date of dispatch. The appeal was required to be filed, within 2 months from the date of receipt of the decision or order of the adjudicating authority. According to the appellant, as stated in ground G, the order was received on 22 May, 2014. The appeal, therefore, should h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
