TaxTMI 
TaxTMI 
2006 (11) TMI 218
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....or the appellant was residing, as shown in the records of the CESTAT, was lying vacant for the past six to seven years. It was accordingly contended that the appellant did not know of the dismissal of its appeal by order dated 22.7.1997 till the receipt of a letter dated 2.4.2003 from the office of the Superintendent of Central Excise, Range 33, Nehru Place [addressed to the sole proprietor of the appellant and delivered at his residential address] seeking to recover a sum of Rs. 4,10,089/- under the provision of Section 142(1)(c)(2) of the Customs Act, 1962 (as applicable to central excise matters). 4. By the impugned order dated 15.7.2003 the Tribunal held as follows: From a perusal of the records, we find that the order was dispatched on 30.7.1997 by registered post. There is no record of the order being returned undelivered to the addressee. The delay in filing this petition is too long. In the circumstances, we are not inclined to allow this application. It is dismissed. 5. By an order dated 10.8.2004, during the hearing of this appeal, this Court directed the appellant to deposit the amount demanded by the Revenue within a period of four weeks. It appears that ....
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....ndent submits that record of the CESTAT does show that the order was dispatched by 'Registered AD' on 5.8.1997. In terms of Rule 35 this was sufficient compliance as far as the CESTAT is concerned. He further candidly states that although the order with the covering letter was sent by the registered AD, there is neither a postal receipt nor an Acknowledgment Due (AD) card signed by the appellant available on the record. He reiterated the submissions made in the counter affidavit that the present appeal gives rise no substantial question of law since the Section 37C of the Act does not apply at all. Accordingly, he submits that the appeal ought to be dismissed. 11. We may first deal with the preliminary objection raised by the respondent that the present appeal does not involve any substantial question of law. For this purpose we may refer to Section 35D, 35G and Section 37C of the Act which reads as under: 35D Procedure of Appellate Tribunal - (1) The provisions of Sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply t....
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....question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) ... (7) ... 37C Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notice issued under this Act or the rules made there under, shall be served, - (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 or order or issued such summons or notice. ....
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....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 interpretation harmonises Rule 35 of the CEGAT (Procedure) Rules, 1982 with Section 37C. While Section 37C deals with the aspect of service of the decision/order, Rule 35 deals with its dispatch. Both Section 37C an....