AI Drafter 
TaxTMI 
TaxTMI 
2018 (1) TMI 220
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....8, under Section 78 of the Finance Act, 1994 2. Being aggrieved, the assessee has filed an appeal No.33 of 2012, before the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore. Adverting to the rival submissions, Commissioner of appeals, vide order dated 08.05.2013, has confirmed the order in original. Thereafter, the assessee/writ petitioner has filed an appeal before CESTAT, Madras, with an application to condone the delay under Section 5 of the Limitation Act, 1963 r/w Section 86(5) of the Finance Act, 1994. In the condonation application, the assessee has contended that he has not received the certified copy of the order-in-appeal, passed by the learned Commissioner (Appeals) in No.CMB-CEX-000-APP-183-13 dated 08.05.2013, by post or direct hand delivery. Photocopy of the order-in-appeal alone has been served on the partner of the assessee firm, Levinisia D'Souza on 22.09.2016, at Mumbai, by the officer of Sales Tax Department, Mumbai-400 001, by hand delivery and acknowledgment taken. The assessee has sent a letter dated 19.12.2016 through speed post, to the learned Commissioner (Appeals) Coimbatore, intimating the fact that the assessee has not r....
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....er-In-Appeal passed by the Hon'ble Commissioner (Appeals) in the case of M/s.RU'S Marketing and Creative Unit in the above referred appeal". "4. I state that the letter dated 04.06.2013 sent by Office of the Commissioner of Customs, Central Excise & Service Tax (Appeals) along with Order-In-Appeal in the case of M/s.RU'S Marketing and Creative Unit has not been received by M/s.Rajesh Kukreja & Associates" 7. Thus, on the basis of the above averments and documents, before CESTAT, Madras, appellant/assessee has sought for a prayer to admit the appeal against the order-in-appeal vide No.CMB-CEX-000-APP-183-13 dated 08.05.2013. 8. After considering the averments, submissions and documents, CESTAT, Madras, in final order No.40492/2017 dated 09.03.2017 has passed the following orders, "Record reveals that address of the appellant before ld. Commissioner (Appeals) was as under:- "M/s.RU's Marketing and Creative Unit, Flat No.1, Siddhi Vinayak, Veer Savarkar Road, Prabha Devi, Mumbai - 400 028. 2. The enquiry report came from the Commissionerate shows that the order in Appeal was sent to Mumbai address of ....
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....ut the question to be considered is whether, CESTAT, Madras, has considered, as to whether, the assessee/appellant was served with the order in appeal, as contemplated under Section 37C(1) of the Central Excise Act, 1944, enabling the assessee to file an appeal within the period, before CESTAT, Madras, under Section 86(5) of the Finance Act, 1994. 11. Earlier, when the matter came up for hearing, while ordering notice to Mr.A.P.Srinivas, learned counsel appearing for the Commissioner of Service Tax, Coimbatore, we directed the department to produce the records relating to the service / communication of the order-in-appeal No.CMB-CEX-000-APP-183-13 dated 08.05.2013. 12. Headquarters (Legal Cell) has sent an email dated 23.11.2017 to the learned counsel for the revenue, as hereunder. "Sir, Pl. find attached some of the documents related to the above case. For Clarification Sl.No.1 - Copy of returned postal cover sent to the appellant is attached (page no.2). Sl.No.2 - No acknowledgement by the authorised representative for the receipt of the order is available. Sl.No.3 - Personal hearing letter dated 7.5.2013 sent to M/s.RUs Marketing and Cre....
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....y 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)." 15. Before adverting to the merits of the case, let us consider few cases on the aspect of service. (i) In Metal Powder Company Limited Vs. Commissioner of Central Excise (Appeals), Tiruchirapalli, reported in 1997 (89) ELT 475, a learned Single Judge of this Court, at paragraph No.5, held as follows: "5...The original order signed by the first respond....
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....ccurring in the title of the Section and the word ?decisions? occurring throughout under Section 35C is, in our view, intended to govern the decisions handed down by the CESTAT as well. It is true that Rule 35D deals with the procedure to be followed by CESTAT, and the Rules of procedure have also been framed separately. However, Rule 35 of those rules are only supplementary to the statutory provisions. The Rules cannot supplant the statutory requirement under Section 37C which requires that the decisions passed under the Act, which in our view includes those passed by the CESTAT, shall be served on the parties in the manner indicated in that provision. Under Section 37C(2) of the Act, which is similar to Section 27 of the General Clauses Act, 1897 service of the decision is `deemed' on the date that such decision is ?tendered or delivered by post?. This implies that the initial burden of proof of tender or delivery of such decision by post as required under Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is on the authority dispatching such notice. The sender will have to show that such notice was in fact sent by ?Registered Post? to the ad....
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....en neither the acknowledgement nor the unserved envelope had been received by the sender it would be deemed that the notice had been served on the addressee. "13...... a Division Bench of this Court in P.Bhoormal Tirupati Vs. Additional Collector of Customs, Madras 2000(126) E.L.T.65 (Mad.), wherein it had been held that while reading Section 153 of the Customs Act, 1962, along with Section 27 of the General Clauses Act, 1897, there would be a normal presumption of service, unless the contrary is proved. The service shall be deemed to have been properly effected when a letter properly addressed, pre-paid and posted by Registered Post. Proof to the contrary can only be shown to the limited extent of proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post. 14. The learned counsel for the respondents had relied on Section 27 of the General Clauses Act, 1897, to show that it would be sufficient, for the purpose of presuming that the Order-in-Original, dated 11.1.94, passed by the third respondent, was served on the petitioner, in accordance with Section 153 of the Customs Act, 1962, if the said o....
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....and Postal articles may be booked after obtaining receipts therefor, at the places specified in column(1) of the Schedule below and the post offices specified in the corresponding entries in column (2) of the said Schedule for delivery under the Inland Speed Post Service subject to the following conditions namely: (1) Inland Speed Post Service shall be available in respect of all classes of mails, which can be sent by the registered service: xxx xxx xxx xxx xxx xxx xxx" In view of Section 28 of the Indian Post Office Act, 1898 read with Rule 66-B of Indian Post Office Rules, 1933 (as inserted vide Gazette Notification dated 24th July, 1986), any postal article i.e. registered at the post office from which it is posted, and a receipt issued in respect of such article is to be treated as "registered post". Both in the case of "registered post" as well as "speed post", the articles when delivered to the post offices, receipts thereof are required to be issued and consequently, both "speed post" and "registered post" satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all ....
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....y Lrs., 1995 (2) SCC 630 to the following effect: "Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended....A clarificatory amendment of this nature will have retrospective effect and therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act." Following the judgment of the Hon'ble Supreme Court as noted hereinabove, we are of the considered view that the insertion of the words "Speed Post" under Section 37C)(1)(a) of the Central Excise Act, 1944 is clearly curative since various High Courts as quoted hereinabove had came to hold that "communication of notices through speed post was in consonance with law". Furt....
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.... not one of the modes of service of orders, decisions, summons, etc. On and from 10.5.13, speed post was made as one of the modes of service for orders, decisions, summons, etc., provided it is supported by proof of delivery. Therefore, it is clear that proof of service is mandatory for the service effected through speed post on and after 10.5.13, but prior to 10.5.13, service through speed post not being a recognised/approved mode of service as per the provisions of the Act, any service effected through speed post is not binding on the appellant/assessee. 11. It is trite law that limitation has to be reckoned only from the date when the actual service has been effected, subject to fulfilling the mandatory requirement of showing proof of delivery. In the case on hand, the service of notice was effected on the appellant only on 23.12.2011 and there is nothing on the record to show that it was served on 9.5.11. Further, the order has been dispatched through speed post on 9.5.11, as is evident from the letter of the Superintendent (Appeals). However, prior to 10.5.13, service through speed post having not been a recognised/approved mode of service, it cannot be treated as ser....