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TMI Blog2025 (1) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... OURT] held that Order Is To Be Served On The Assessee Or His Agent By Registered Post A.D. Or Any Other Mode Specified In Section 37C and mere proof of dispatch of order is not sufficient compliance of the section. Condonation of delay - HELD THAT:- In the present case, no doubt there occurred a delay in filling the appeal before Commissioner (Appeals) but the same was within the condonable powers of the Commissioner (Appeals) but he didn t call for the explanation from the appellant. The appeal has been dismissed simply holding that there is no request on record seeking condonation of delay in filing the appeal. The order is clear to hold that no opportunity of personal hearing was given to the appellant nor any reasonable time to file the miscellaneous application - the very basic principle of Principles of Natural Justice has been violated by Commissioner (Appeals). In view thereof and the above discussed decisions, the impunged order of Commissioner (Appeals) set aside. Since there are no findings with respect to the merits of the Order in original as was appealed before Commissioner (Appeals) the matter remanded back to Commissioner (Appeals) to decide the appeal on its merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appropriate penalty was proposed to imposed on the appellant vide show cause notice no. 81/2014 dated 20.5.2014. The said proposal has been confirmed vide the aforesaid OIO. The appeal against the said order has been dismissed / rejected vide the impugned OIA on the technical ground of limitation. Being aggrieved the appellant is before this tribunal. 3. We have heard Shri Tarun Chatterjee and Shri Saurav Basu, learned Advocate for the appellant and Ms. Jayakumari, Authorized Representative for the department. 3.1 It is mentioned by the ld. Counsel for the appellant that the Order-in-Original dated 25-10-2016 was received by the appellant from the Superintended on 20-07-2017 and the appeal before the Commissioner (Appeals) was filed on 02-08-2017. Thus the appeal is filed within the prescribed time. It is alleged that ld. Commissioner (Appeals) failed to appreciate that the Assistant Commissioner (Adjudication) vide letter dated 15-01-2019 informed that the Order-in-Original under challenge is dispatched on 25-10- 2016 and the said order is not returned undelivered. Commissioner (Appeals) has also failed to appreciate that the department has not brought any record evidencing t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tices 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 acknowledgement due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, to the person for whom it is intended or his authorized agent, if any; 7. We observe that Commissioner (Appeals) has cited and relied upon the unamended section 37C of the Central Excise Act, which indicated that the order had been sent by registered post. However, this section had been amended in 2013. The relevant portion of the unamended section 37C of Central Excise Act is reproduced below: SECTION 37C. (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, 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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. 10. Hon ble High Court Mumbai, also in the case Amidev Agro Care Pvt. Ltd. v. UOI . reported as (2012) 26 STR 299 (Bom.) held that Order Is To Be Served On The Assessee Or His Agent By Registered Post A.D. Or Any Other Mode Specified In Section 37C and mere proof of dispatch of order is not sufficient compliance of the section. 11. The instant issue is squarely covered by the decision of the Hon ble Gujrat High Court in REGENT OVERSEAS PVT. LTD. VS. UNION OF INDIA, 2017 (6) G.S.T.L. 15 (Guj.), the appellant states that the Hon ble High Court at Para 8 held: 8. Thus, under clause (a) of sub-section (1) of Section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of delivery. To put it differently, service by speed post is valid provided there is proof of delivery. In the present case, it is an admitted position that the letter of personal hearing was sent to the petitioners through speed post; however, through details of date of despatch, etc., have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y registered post with acknowledgement due in section 37C(1)(a) of Central Excise Act, 1944 w.e.f. 10.05.2013 is clarificatory and procedural amendment. It is curative since various courts had held that communication of notices through speed post was in consonance with law. 14. There already has been the decision in favour of appellants in their own case i.e. M/s Bridge Roof Company ( India) Ltd. Vs CCE Jaipur by this Tribunal final order no. 58254- 58255/2017 dated 01-12-2017. This decision was brought to the notice of the Commissioner (Appeals) but he chose to dismiss the appeal on technical and mechanical ground of limitation. 15. We are also conscious that if delay is not condoned, the appeal goes out of consideration at the threshold. We are conscious that Apex Court in the case of COLLECTOR, LAND ACQUISITION ANANTNAG AND ANOTHER Vs. MST. KATIJI AND OTHERS - 1987 (28) ELT 185 (SC) has held that no one shall prefer to cause prejudice to himself by a belated appeal. We are also conscious of the Apex Court judgment in the case of N.Balakrishna Vs. M.Krishnamurthy - 2009 (228) ELT 162 (SC). Reason of delay has primacy over length of delay. 16. In the present case, no doubt there o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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