TaxTMI 
TaxTMI 
TaxTMI 
2018 (1) TMI 220
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....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 received the certified copy of the order-in....
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.... 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 the appellant as above. Authority had taken proper steps to serve the appellate order at the address of appellant av....
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....al, 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 Creative Unit, C/O. Levnisia D'Souza, 601-602, Mak Prabha, Opp. Old Prbhadevi Mandir, Kowli Wadi, Prabhadevi, Mumbai - 400 025 and personal hearing letter dated 22.03.2013 sent to....
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....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 respondent has not been communicated to the petitioner. It is not in accordance with law and procedure laid down under Section 11(1)(a) of the Act. Section 37C prescribes the mode of service of decisions, orders, summons, etc., under the act. In the instant case, the procedure given for service of the appellate order has not been complied with as the first respondent has only communicated the order by telegram and has not sent the ori....
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....tion 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 addressee. It is only then that deeming fiction spelt out in Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 would stand attracted. The burden thereafter would be on the addressee to show that such notice was not in fact served. 15. We, therefore, hold that the provisions of Section 37C of the Act requiring the service of the decisions passed under the Act, would also apply to the decisions handed down by the CESTAT. This inter....
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....trary 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 order had been sent by Registered Post. Section 27 of the General Clauses Act, 1897, which reads as follows: 27. Meaning of service by post._ Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properlyaddressing, pre-paying a....
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.... 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 is the charges payable are normally higher for "speed post" as the name suggests the delivery of such articles at an early date." "9...It is well settled in law that where an amendment which is brought about is "clarificatory in nature", the same would date back to the date on which the original provision was introduced. No doubt, prior to the amendment on 10.5.2013, the word "registered post" found mentioned in Section 35(C) of the Central Excise Act. In view of Section 28 of the Indian Posts Office Act, 1898, we are of the considered view that both "registered post" as....
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....ct, 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". Further this amendment is purely explanatory since Section 28 of Indian Post Office Act, 1988 read with Rule 66-B of the Indian Post Office Rules, 1993 (as amended on 24th July 1986). In our considered view, the insertion of "speed post" within the scope and ambit with the "registered post" as mandatory thereunder. Consequently, the amending statute is held by us as "clarificatory amendment" and would have retrospective effect and, therefore, the argument to the contrary by the learned Sr. Counsel for the petitioner hereby stands rejected.." (vi) In M/s.Premier Garment Processing Vs. The Customs, Excise & Service Tax Appel....
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.... 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 service for reckoning the period of limitation. For the sake argument, even if the order is said to have been delivered by RPAD on 9.5.11, which apparently has not happened in this case, no proof having been filed to support such delivery, which is the mandatory requirement as per Section 37C (1) (a) of the Act, it is clear that the service of notice in the manner as prescribed under Section 37C (1) (a) has not been effected. 12. Further, it appears that the appellant was informed vide letter of the Superintendent (Appeals) dated 22.12.11, wherein he was informed about the order dated 25.4.11. Only thereafter, the appellant preferred the appeals,....