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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 ..... . 2.2 During the course of audit of appellant's record, it was observed that the taxable service like Commercial or Industrial Building and Civil Structure Services and Works Contract Service were also got added to appellant's registration on 14.06.2007 and 23.08.2007 respectively. It was also observed that the appellant entered into a contract with M/s BHEL for construction of Civil Steel Structure and Architecture Works dated 15.12.2006. Since January 2007 itself the appellant starting taking benefit of Works Contract (composition scheme for payment of service tax) Rules, 2007 despite that said benefit was not available, since January 2007, on the strength of single agreement dated 15.12.2006 as the Works Contract Services became taxable w.e.f. 1.06.2007. 2.3 Based on these observations the appellant is observed to be liable to pay service tax amounting to Rs. 59,60,047/-on the taxable value 5,38,84,114/- received during the period April 2011 to September 2013. The appellant had paid the service tax under composition scheme of an amount of Rs. 22,94,884/-. Hence service tax amount to Rs. 36,65,163 was proposed to be recovered along with interest and the appropriate penalty was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed personal hearing to the appellant 30.08.2016. Ld. DR submitted that, in the given circumstances, it is not possible that the copy of order in original, as was dispatched at the same address of the appellant was not received by him. Otherwise, also there lies presumption in favor of delivery of the dispatched process, and the receipt thereof. Thus there can be no reasonable explanation for the delay that occurred while filing the appeal before Commissioner (Appeals). Hence there is no infirmity in the order under challenge, the present appeal is therefore prayed to be dismissed. 5. Having heard the rival contentions of both the parties, we observe that the moot question to be adjudicated is: "Whether sending of order by speed-post complies with the provision of section 37C(1)(a) of the Central Excise Acti.e whether proof of dispatch of a process can supplement the proof of service there of?" 6. Foremost, we peruse section 37C of the Central Excise Act which has been made applicable to service tax matter by virtue of section 83 of the Finance Act, same is reproduced below: 37C. Service of decisions, orders, summons, etc. (1) Any decision or order passed or any summons or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry also. In the present case, admittedly, there is no proof of delivery since what has been stated by the Assistant Commissioner in his comments is that the speed post which was sent to the appellant containing the order in original did not return to the office. 9. In M/s. Premier Garment Processing Vs. The Customs, Excise & Service Tax Appellate Tribunal, South Regional Bench, Annexe, Nungambakkam, Chennai - 600 006 and another, reported in 2015 (39) STR 812 (Mad) after considering the contentions of rival parties, a Hon'ble Division Bench of this Court, held: 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 37C of the Central Excise Act, 1944, notice must be served to the person for whom it is intended or his authorized agent under proof of acknowledgement. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The judgment lays down the pre-requisite for issuance of notice. Any notice issued in violation of section 37C is not valid. It is worth mentioning that section 37C has been made applicable to service tax also by virtue of section 83 of the Finance Act, 1994. Hence, the principle laid down in the judgment shall mutatis mutandis apply to notice served in service tax cases also. 13. In Jay Balaji Jyoti Steels Ltd. v. Cestat, Kolkata (2015 (1) TMI 859 - ORISSA HIGH COURT where order was sent by speed post, it was held that post office issues receipt for both - by registered post and by speed post. Hence, both have to be treated as registered post in view of section 28 of Indian Post Office Act, 1898. Only difference between the two is that charges payable are normally higher for 'speed post' for delivery at any early date. Further, insertion of 'or by speed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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