2016 (8) TMI 927

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....ed mode of services u/S.153 and thus the impugned order is a nullity? (2) Whether proper service of order under Section 153 of the Customs Act is condition precedent for order to be considered a valid order? (3) Whether the period of limitation starts from the date of proper/valid service of the order-in-original? (4) Whether both the authorities, including CESTAT- Bangalore, are justified in their conclusion that the appeal is barred by limitation overlooking, the fact that the appeal was filed within the prescribed period of limitation if one reckons from the date of knowledge of the order? and (5) Whether the order-in-original levying duty does not suffer vice of illegality and gross violation of princ....

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....012. 6. However, claiming that they acquired knowledge of the passing of the order of adjudication only on 12-12-2013, when they received a mail from Clearing House Agent, about a demand made on them, the appellant filed a statutory appeal before the Commissioner (Appeals). By an Order-in-Appeal dated 15-4-2014, the Commissioner dismissed the appeal on the ground that the appeal was barred by time. As against the said order, the appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Bangalore. The Tribunal dismissed the appeal on the ground that the Commissioner (Appeals) had no power to condone the delay beyond 30 days and that the service of the copy of the Order- in-Origina....

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....n "Speed Post". This provision in the Central Excise Act recognizes three different modes of service, namely, (a) registered post with acknowledgment due, (b) speed post with proof of delivery and (c) service through courier approved by the Central Board. 11. In comparison, Section 153(a) of the Customs Act, 1962, makes a mention only about two different methods of service, namely, (1) registered post and (2) such courier as may be approved by the Commissioner of Customs. 12. Therefore, on the basis of the difference in the language employed between Section 37(C)(1)(a) of the Central Excise Act, 1944 and Section 153(a) of the Customs Act, 1962, a learned Judge of Allahabad High Court held in SUPER HOUSE LTD. v. UNION OF [2015 (322) E.....

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....E.L.T. 496 (All.)], took the view that registered post and speed post are the same methods of service and that the object of sending the post by registered post is to keep a record. The same object is served by sending an article by speed post through the same agency. Therefore, the Division Bench of the Allahabad High Court struck a different note in the said decision. 14. The learned Senior Standing Counsel for the Department brought to our notice, a decision of the High Court of Orissa in JAY BALAJI JYOTI STEELS LTD. v. CESTAT, KOLKATA [2015 (37) S.T.R. 673 (Ori.)] , wherein the Division Bench of the Orissa High Court expressed its inability to follow the decision of the Bombay High Court in AMIDEV AGRO CARE PVT. LTD. (3 supra) and he....

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....nce it cannot be taken to be an authoritative pronouncement of the law on the point. 17. AMIDEV AGRO CARE PVT. LTD. (3 supra), which is a decision of the Bombay High Court, arose under Section 37(C) of the Central Excise Act, 1944. In that case, the provisions of Section 37(C) (1)(a) did not contain the words "Speed Post" before the amendment. After the amendment, the words were specifically incorporated. Therefore, the Bombay High Court was compelled to come to the conclusion that when the Parliament sought to make an amendment to the existing law on the realization that there was something missing, any interpretation given by the Court should also be in tune with such change of law. 18. The decision of the Bombay High Court in NEW D....