Held
The perusal of section 37C(1) of the Act of 1944 reveals mode of dispatch and, at the relevant time, it could have been sent through registered post but with acknowledgement due. There is nothing on record to show that after sending copy of the order through registered post, the acknowledgement due was produced. In view of above, mandate of section 37C(1) of the Act of 1944 has not been looked into by the appellate tribunal. In absence of service of copy of the order in the manner prescribed under section 37C(1) of the Act, delay cannot be attributed towards the appellant for challenge of the order. Our view is supported by the judgment of this court in the case of Vinod Choudhary v. Union of India [DB Central Excise Appeal No. 45/2015, decided on 7.4.2016] at Principal Seat, Jodhpur.
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HIGH COURT OF RAJASTHAN
RP Casting (P.) Ltd.
v.
Customs, Excise & Service Tax Appellate Tribunal, New Delhi
D.B.CENTRAL EXCISE APPEAL NO. 39 OF 2009
MAY 13, 2016
Prateek Singh and Mahesh Gupta for the Appellant. Vinay Mathur for the Respondent.
ORDER
1. The appeal is listed on second stay application, however, learned counsel for the assessee submits that stay application has become infructuous as the entire amount has been recovered by auction of the property of the assessee. The prayer is made to hear and decide the appeal on its merit.
2. In view of aforesaid, second stay application is dismissed as rendered infructuous.
3. With consent of the parties, appeal is heard finally.
4. Learned counsel for the assessee submits that the order against which appeal was preferred before the Tribunal had not been served on the appellant-assessee yet the application for condonation of delay was dismissed. The appellant was not aware of the order. He thus gave information about his address for sending copy of the order. The copy of the order was sent through registered post but not served and there is no proof about its service on the appellant. The delay in filing appeal before the Tribunal was required to be considered in the light of the aforesaid and section 37C(1) of the Central Excise Act, 1944 (for short ‘the Act of 1944’). The appeal preferred by the appellant along with application for condonation of delay was dismissed by the Custom, Excise & Service Tax Appellate Tribunal (for short ‘the appellate tribunal’) ignoring the delay in service of copy of the order.
5. When the order appealed by the appellant before the Tribunal was not served on the appellant as per the provisions of law, the period of limitation should not have been counted from the date of issuance of the order. Taking into consideration the aforesaid, impugned order dated 3.10.2008 may be set aside. It is more so when the department itself has admitted that the document to prove service of notice to the appellant was not submitted or does not exist with them.
6. Learned counsel appearing for the revenue has contested the appeal. It is submitted that delay in filing the appeal is almost of 10 years thus may not be condoned. The copy of the order was dispatched through registered post on the address furnished by the appellant vide notice dated 4.10.1999 and it was not received unserved thus presumption about service was drawn. If the period of limitation is counted from the aforesaid date, the appeal is barred by limitation and without any explanation of delay. The application for condonation of delay was rightly dismissed by the appellate tribunal.
7. We have considered rival submissions of the parties and perused the record.
8. It is not in dispute that the appeal maintained by the appellant before the appellate tribunal was delayed by 3214 days. The appeal was filed on 21.5.2008. The impugned order against which appeal was preferred was passed on 1.4.1999 by the CCE, Jaipur. A copy of the order was sent to the appellant but no material was produced for its service. The appellant furnished the address to the Commissioner of Central Excise to send a copy of the order. The copy of the order was then dispatched through registered post on 4.10.1999 but was not received by the appellant. The appellate tribunal found that the appellant was knowing about the order and made a request to send it at the appellant’s address thus, knowing about the order, delay in filing of the appeal cannot be held to be justified.
9. We find that mandate of section 37C(1) of the Act of 1944 has not been taken into consideration by the appellate tribunal. Section 37C(1) of the Act of 1944 is reproduced hereasunder for ready reference —
“37C. Service of decisions, orders, summons, etc. — (1) Any decision or order passed or any summons or notice 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 any speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (54 of 1963), 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 copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; | |
| (c) | 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).”
10. The perusal of section 37C(1) of the Act of 1944 reveals mode of dispatch and, at the relevant time, it could have been sent through registered post but with acknowledgement due. There is nothing on record to show that after sending copy of the order through registered post, the acknowledgement due was produced. In view of above, mandate of section 37C(1) of the Act of 1944 has not been looked into by the appellate tribunal. In absence of service of copy of the order in the manner prescribed under section 37C(1) of the Act, delay cannot be attributed towards the appellant for challenge of the order. Our view is supported by the judgment of this court in the case of Vinod Choudhary v. Union of India [DB Central Excise Appeal No. 45/2015, decided on 7.4.2016] at Principal Seat, Jodhpur.
11. In view of above, we find substance in the appeal and, accordingly, impugned order dated 3.10.2008 passed by the appellate tribunal is set aside and the delay in filing the appeal is condoned for the reasons given above. The matter is remanded back to the appellate tribunal for its decision on merit.
12. With the aforesaid, appeal is disposed of.