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TMI Blog2019 (8) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... oner, the author of the Order-in-Original, that the order is being sent by registered post with A/D, it is not understood under what authority the Superintendent (Adjudication) altered the mode of service and sought to effect service of the order through a special messenger. When a particular mode for service is prescribed by the author of the Order-in-Original, we are of the considered opinion that such mode has to be complied with and no other mode is permissible, though a number of modes, otherwise, is provided in Section 37-C of the Central Excise Act, 1944. The computation of period of limitation will begin from 01.09.2017, the date on which, the appellant undisputedly was furnished with a certified copy of the Order-in-Original. So computed, the appeal filed before the Commissioner (Appeals) on 10.10.2017 is within the prescribed period of limitation - the orders passed by the Commissioner (Appeals) and CESTAT cannot be sustained in law - Appeal allowed - decided in favor of appellant. - C.Ex.App. No. 8/2019 - - - Dated:- 9-8-2019 - The Chief Justice (Acting) Mr. Arup Kumar Goswami And Mr. Justice Manish Choudhury For the Appellant : Ms. M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red Five] only on the Noticee in terms of Section 78 of the Finance Act, 1994. However, the Noticee may avail the facility of reduced penalty to the extent of 25% of their total tax liability in terms of the 2nd proviso to Section 78 of the Finance Act, 1994 by way of making payment of their total tax liability as determined vide this Order within 1(one) month from the date of communication of this Order along with interest, as applicable thereon, and the amount of penalty equivalent to the extent of 25% of their total tax liability of ₹ 17,15,905/-. 4. Moreover, I impose a penalty of ₹ 1,000/- [Rupees One Thousand] only on the Noticee in terms of Section 77 of the Finance Act, 1994 on account of their failure to obtain Service Tax Registration and due to non-submission of ST-3 Return during the material period. 5. Moreover, I order for appropriation of the amount of ₹ 20,000/- [Rupees Twenty Thousand] only already deposited by the Noticee towards clearance of their outstanding liability arising out of the instant Show Cause Notice. 4. The stand of the department is that the said Order-in-Original was serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by registered post with A/D, it is not understood why or on what basis or under what authority the Superintendent (Adjudication) had resorted to deliver the order by a special messenger. It is submitted by her that if the appeal is not considered on merit, grave prejudice will be caused to the appellant for no fault of his. Neither the Commissioner (Appeals) nor the CESTAT considered the aspect as to whether the department was justified in sending the Order-in-Original by a special messenger when direction was issued for delivery of the same by registered A/D, she contends. 7. Mr. B. Sarma, learned standing counsel, appearing for the respondents, submits that when a notice dated 10.05.2010 fixing the date of hearing on 19.05.2010 was sent by registered post with A/D, the same was returned un-served and, therefore, when personal hearing was fixed on 08.07.2010, the notice was delivered personally to the appellant. It is submitted that as on one occasion, notice sent by registered post was returned back un-served, the department had taken recourse to serve the Order-in-Original by a special messenger and no fault can be attributed for taking the course as had been ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforementioned Order-in-Original dated 14.07.2010 with acknowledgement and to send the receipt of acknowledgement to the office. The said document is available at page-53 of the appeal papers and there is an endorsement to the following effect:- Received REGISTER WITH A/D C.No.V(15)21/ADJ/HQR/GHY/09/3564 RECEIVE 16.7.10 is a signature. 11. Mr. Sarma has submitted that the signature appearing thereon is that of the appellant and it manifestly demonstrates that the appellant had received the said Order-in-Original. 12. It is to be noticed that the letter number appearing at page-47 with the signature of the Additional Commissioner is the same letter dated 15.07.2010 issued by the Superintendent (Adjudication). Having regard to the endorsement of Additional Commissioner, the author of the Order-in-Original, that the order is being sent by registered post with A/D, it is not understood under what authority the Superintendent (Adjudication) altered the mode of service and sought to effect service of the order th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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