TaxTMI 
TaxTMI 
2014 (12) TMI 901
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....claimed in the ratio of 1.882 : 1.000for export of SS Utensils made out of SS Flats by the applicant. 2.2. Aggrieved by these orders-in-original, the applicant has filed appeals before Commissioner (Appeals) who rejected the same being time barred. 2.3 Being aggrieved by the impugned orders-in-appeal, the applicant filed R.A.No.195/219-224/10-RA before JS (RA). The JS (RA) vide revision order No.1103-1108/2011-Cx dated 25.8.11 remanded the case back to decide the issue after considering submission of applicant. 3. In remand proceedings, the Commissioner (Appeals) rejected the appeal again as time barred. 4. Being aggrieved with the impugned orders-in-appeal, the party has filed this revision application under Section 35EE of the Central Excise Act, 1944 before Government on following grounds: 4.1 With regard to the issue of time bar, the Joint Secretary, RA has considered the submission of the applicant, that if at all the orders were dispatched on 30.07.2008 against the postal receipts, there could not have been other instance for the department to hand over a physical copy of the said order on 21.08.2008 to the representative of the applicant. It is pertinent to mention that....
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....d, as alleged by the respondent. 4.3 The Commissioner of Central Excise (Appeals) has passed the impugned Order-in-Appeal on the ground that the appellant has not proved the receipt of the impugned order in original on 21.10.2008 whereas the records of the Central Excise prove that the appellant through his representative has received the order by hand two months before i.e. 21.08.2008. However, unless contrary is proved after the cross examination of the Dispatch Department, the Revision Authority shall accept the contended averment of the Applicant and consider 21.10.2008 as the receipt date of the Order dated 30.07.2008. Further, the applicant has already filed an Affidavit duly notarized dated 23.07.2011, stating that: "1. That the Order-in-Original No. 219-224-R dated 30.07.2008 (Copy) has been received by us on 21st October, 2008 2. That before that date neither me nor my Authorized representative has received the orders from the office of the Assistant Commissioner Central Excise, Division-I, Delhi-I. &....
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.... on 6.1.2009 is clearly time barred. The applicant contended that none of their authorized representative received the impugned orders on 21.8.2008 as alleged by the department. Neither, they received any orders through post. The applicant contended that they received order only on 21.10.2008 and the appeal has been filed within condonable time limit of appeal period. Government now proceeds to discuss this issue in light of statutory provision in this regard and various case laws. 8.1 Government finds that Section 153 of the Customs Act, 1962reads as under: SECTION 153 Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house. Hon'ble Bombay High Court vide order dated 3.2.12 has clarified the meaning of; service; of order sent by speed post by interpretation of Section 37C (1) (a) of-the Central Excise A....
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....; (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 subsection (1). 5. Asper section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. Admittedly in the present case,....