9911796707
TMI Blog2005 (12) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, before the Commissioner (Appeals), they have pleaded that the order-in-original, which was passed behind their back and said to have been sent to the appellants, was never received by them till they received the letter dated 14-5-2001 by which they were asked by the Superintendent to deposit the amount of penalty, adjudicated under order-in-original dated 22-3-99. The appellants stated that they have not received any other order except Order dated 26-2-99. Therefore, there cannot be any question of recovery. The Superintendent under his letter dated 25-7-2001 informed the appellants that under Order-in-Original dated 22-3-99. Penalty of Rs. 1 lakh has been imposed on him by the adjudicating authority and copy of the said order-in-Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (172) E.L.T. 86 (Tribunal-Delhi)], where it was held that "We, however, find force in the submissions of the learned Advocate that Section 153 only specifies the method of service of an order or decision whereas Section 128 creates a statutory right to file appeal within three months from the date of communication of order. If order, though sent to them by registered post/speed post, does not reach them, there is no communication of order to them and in absence of the same they cannot file the appeal. Thus, the presumption of order being delivered to the appellants is a rebuttable presumption. The appellants have a difficult task before them as they have not received copy of the order". It was therefore pleaded that since the appellants rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of the order. Reliance was placed on the decision in the case of P. Bhoormal Tirupati v. Additional Collector of Customs, Madras reported in 2000 (126) E.L.T. 65 (Mad.), where it was held that normal presumption, unless the contrary proved, service shall be deemed to have been properly effected when a letter properly addressed, pre-paid and posted by registered post. Reliance was also placed on the decision of this Tribunal in the case of Bharat Nandlal Kalyani v. Collector of Customs (Prev.) reported in 1988 (36) E.L.T. 645 (Tribunal), which was confirmed by the Supreme Court under 1997 (94) E.L.T. A251. However, the learned Counsel for the appellants pleaded that the case of P. Bhoormal Tirupathi was decided on 22-8-1973 and thereafter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal. I find that there is no doubt that the order-in-original was sent under registered post and it was not received back. However, for filing the appeal under Section 35 of the Central Excise Act, the time is to be reckoned from the date of communication of the order. In the present case, the date of communication of the order, which was sent by the registered post is not available. The appellants have pointed out that they have never received the letter and also filed an affidavit that the order-in-original was received by them on 6-8-2001 through the letter of the Superintendent dated 25-7-2001. Therefore, the appellants have rebutted the claim of the Department that the order dated 22-3-99 passed by the original authority sent to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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