2008 (10) TMI 403

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....t apart from the despatch of a copy of the order under said memo dated 16-2-2006, the same was also sent to the appellant through speed post on 11-3-2006. In course of hearing learned DR produced before us photocopy of the postal receipt showing the despatch by speed post on 11-3-2006. 2. The case of the appellant is that the copy of the order-in-appeal was not received by them and, on request to that effect, the copy was supplied on 15-2-2008. Accordingly the appeal filed in the Tribunal on 14-5-2008 is within the period of limitation. The appellant has nevertheless filed application for condonation of delay pursuant to the direction of the Bench which has come up for consideration today. We may quote the said application verbatim as....

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.... which is unintentional and bona fide and beyond the control of the Appellant and is required to be condoned for the delay, if any. PRAYER In view of the aforesaid it is therefore prayed that the delay of approx. 797 days as per objection of the department be held as not sustainable and the delay in filing of appeal, which was beyond the control of the Appellant, may kindly be condoned and the Appeal be listed to its original number." Since the application refers to an affidavit, we may also notice the contents thereof verbatim as under : "1.     That the deponent is the partner of M/s Industrial Enterprises (Deter gent Unit-II), 466, Umran, Rania, Kanpur-Dehat, and is fully conversant with the facts of the case depo....

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....ppellant, learned Counsel submitted that in the absence of any proof of the actual receipt of the copy of the order, the case of the Department that copy of order-in-appeal was, in fact, sent on 16-2-2006/11-3-2006 cannot be believed. In support of his submission, counsel placed reliance on the decision in Margra Industries Ltd. v Commissioner of Customs, New Delhi, 2006 (202) E.L.T. 244 (T-LB) = 2008 (10) S.T.R. 81(Tri.-LB). 4. Section 37C of the Central Excise Act, 1944 lays down the manner of service of decisions, orders, summons, etc. Sub-section (1) thereof provides - "(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 intend....

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....t stands on the same footing as registered post. When the Act was enacted in 1944, there was no such thing as 'speed post'. We are inclined to think when an order, summon is sent by speed post or registered post, there is a presumption that it is duly received by the addressee. And, therefore, there being adequate proof of the fact that the copy of the order was despatched by speed post, we are satisfied that clause (a) stood satisfied. When there is presumption that it is duly served on the addressee, onus would lie on the person to prove to the contrary that it was not so served. 7. It would not be out of place to mention here that the appellant attended the personal hearing fixed by the Commissioner (Appeals) on different dates, th....