TaxTMI 
TaxTMI 
TaxTMI 
2019 (4) TMI 1005
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.... the Finance 1994 (hereinafter referred to as the Act). 2. Section 85 (3A) of the Finance Act provides that the appeal shall be presented within a period of two months from the date of receipt of the decision or order of the adjudicating authority but the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. 3. In the present case the order was passed by the Adjudicating Authority on 26 September, 2012. It is said to have been sent to the Appellant by speed post on 28 September, 2012. The Commissioner (Appeals), on the basis of a report submitte....
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....d in 2010 (225-ECR 321 (P&H) it has been held that if notice is sent by speed post and not returned by postal authority it is deemed to have been served." 6. Learned counsel for the appellant has submitted that the order was not sent on the appellant in accordance with the provision of Section 37 (C) of the Central Excise Act which deals service of decisions, orders, and summons, since it was dispatched by speed post and not registered post with acknowledgment due and, therefore, the learned Commissioner (Appeals) was not justified in holding that the order shall be deemed to have been served on the appellant. 7. Learned Authorized Representative of the Department has, however, supported the impugned order and has placed reliance upon the....
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....d,- (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 intended or his authorized agent, if any; (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....
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....n 2015-TIOL-1089-HC-MUM-CUS. This decision in New Drug has relied upon Amidev Agro Care Pvt. Ltd. 14. The Bombay High Court in Amidev Agro Care Pvt. Ltd held that it was mandatory on the part of the Revenue to serve a copy of the order of the Adjudicating Authority by registered post with acknowledgment due to the assessee, but since it was sent by speed post, it was not sent in the prescribed manner. It also held that the Tribunal was wrong in relying upon the judgment of the High Court in Mohan Bottle Pvt. Ltd., which decision has been relied upon by the learned Authorized Representative. The relevant paragraphs of the judgment are reproduced below:- 5. As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a c....
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.... above the judgment rendered in Amidev Agro was followed by Bombay High Court in New Drug and Chemical Co. 16. The decision in Mohan Bottle Pvt. Ltd would, therefore, not be of any help to the appellant as in that case the order was dispatched by a registered post which was the mode prescribed under Section 37(C) of the Central Excise Act. 17. It is, therefore, seen that the order dated 28 September, 2012, passed by the Adjudicating Authority, was not sent to the appellant by either of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. 18. The Commission....