2024 (11) TMI 289 - AT - Service Tax

Service of notice under Section 37C must follow strict compliance despite email delivery and photocopy provision

M/s Dhiraj Srivastava Versus Commissioner, CGST & Central Excise, Allahabad

CESTAT Allahabad set aside the Commissioner (Appeals) order regarding service of notice under Section 37C of Central Excise Act, 1944. The original order ... Method/Manner of service of the order - interpretation of Section 37C of Central Excise Act, 1994 - Commissioner (Appeals) considering the service of the order through GSTIN registered email - HELD THAT:- We find that the Order-In-Original dated 24.02.2023 was dispatched by registered post but the same was returned undelivered and this fact has been recorded by the Commissioner (Appeals) in the impugned order at Para 4.1.1. Subsequently, a copy of the order was sent through GSTIN registered email on 27.10.2023. However, on request of the Appellant, a photocopy of the impugned order was sent on 05.02.2024. Thus, find that the Tribunal in the case of Ratan Coal Traders V[2015 (10) TMI 1803 - CESTAT NEW DELHI] held that the provision of Section 37C of Central Excise Act, 1944 have to be followed in letter and spirit and accordingly allowed the appeal by way of remand to the learned Commissioner (Appeals) to consider the appeal on merits. We find it appropriate to set aside the impugned order and remand the matter to the learned Commissioner (Appeals) to decide the appeal on merits without further going into the aspect of limitation. Issues: Appeal for early hearing, maintainability of appeal before Commissioner (Appeals), service of order through email, interpretation of Section 37C of Central Excise Act, 1994.Analysis:1. The Appellant filed a Miscellaneous Application (Early Hearing) seeking out-of-turn hearing of the appeal, which was accepted. The appeal challenged the Order-In-Appeal rejecting it as not maintainable by the Commissioner (Appeals) CGST & Central Excise, Allahabad. The Appellant claimed to have received the Order-In-Original on 05.02.2024, filed the appeal on 20.03.2024 within the statutory period, but the Commissioner (Appeals) considered the order served on 27.10.2023 via email, leading to dismissal of the appeal on grounds of being time-barred.2. The Appellant argued against the service date of the order through email, citing Section 37C of the Central Excise Act, 1994, and referred to legal precedents to support their case. The Departmental Representative supported the impugned order, asserting the lack of merit in the appeal. The Tribunal analyzed the service of the Order-In-Original, noting its dispatch via registered post, return undelivered, and subsequent email service on 27.10.2023, with a photocopy sent on 05.02.2024 upon request.3. Referring to the case law of Ratan Coal Traders and Navkar Agro Industries Ltd., the Tribunal emphasized the strict compliance with Section 37C of the Central Excise Act, 1994. The Tribunal set aside the impugned order, remanding the matter to the Commissioner (Appeals) for a merit-based decision without delving into the limitation aspect. The Tribunal stressed the necessity of affording the Appellant a hearing and upholding the principles of natural justice before passing the appellate order.4. Consequently, the Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) for a fresh consideration on merits, following the legal provisions and ensuring procedural fairness. The judgment highlighted the importance of adhering to statutory requirements and providing parties with a fair opportunity to present their case before reaching a decision.