TaxTMI 
TaxTMI 
2025 (5) TMI 2230
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....becca Forex/493/DIV-II/Agra/2019 dated 17.08.2022 of the Assistant Commissioner, CGST & C. Ex., Division-II Agra. However, I find from the Assistant Commissioner letter dated 17.08.2022 that the said O-I-O had already been sent to appellant at their registered address by the Divisional Office vide dispatch dated 28.09.2021 through Post and the attested copy of the said 0-1-0 was provided to the appellant vide aforesaid letter 17.08.2022. There is nothing on record to suggest that O-in-O came undelivered. As per the Section-27 of the General Clauses Act-1897 meaning of service by post is reproduced as under: - "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 properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary cours....
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....ls) to extend time limit by 1 month for filing the appeal subject to his satisfaction that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 2 months providing that: - "Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month." Even after extending the benefit of judgment passed by the Hon'ble Supreme Court in Miscellaneous Application No. 21 of 2022 in SMW(C) No. 3 of 2020 wherein, it has been held that "In cases where the limitation would have expired during the period between 15.03.2020 till 28.02.2022, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, that longer period shall apply." It is noted that the said time limit had also been expired on 31 May 2022. I find it ....
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....etter of the Asstt. Commissioner, CGST & Service Tax Division-II, Agra dated 17/08/2022 and the appeal was filed by them in this case on 06/12/20222, which is well in time. (vi) limitation has to be reckoned only from the date of receipt of the order and not from the date of dispatch or on the basis of hypothetical or deemed receipt. They rely upon the judgment/ decisions a. Hindustan Institute of Aeronautics [Final Order No.50053/2016 Dated 05.01.2016 in Service Tax Appeal No.51206/2014-CU(DB)] b. Mini Enterprises [2014(33)S.T.R.209(Tri. Del)] c. Sunbright Cement Agencies Pvt. Ltd [Final Order No. A/86741/2021 Dated 30.08.2021 in S.T Appeal No.85374 of 2016] d. Baldeep Singh [Final Order No.51224/2021 Dated 07/04/2021] e. RU'S MARKETING AND CREATIVE NIT-II [2018(11) G.S.T.L. 113(Mad.)] f. ADWAITH LAKSHMI INDUSTRIES LTD [2017 (353) E.L.T. 192 (Mad.)] 4.1 I have Shri S P Ojha, Consultant and Ms Stuti Saggi, Advocate for the appellant and Shri Santosh Kumar, Authorized Representative for the revenue. 5.1 I find that the fact of the receipt of the order is not in dispute. It is not even the case of the Appellant ....
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.... was sent to the earlier Vasant Vihar address, it was not received by the appellant. All that is stated is that the Vasant Vihar office ought to have forwarded the order to the Appellant immediately but it failed to do so. The appellant has also not indicated the date on which the Vasant Vihar office forwarded the order to the appellant nor the appellant has indicated when this order was received by it at the new address. These facts were required to be stated by the appellant to make out a case for condoning the delay, but they have not been stated. 7. We are, therefore, not satisfied with the averments made in the application that the appellant was prevented by sufficient cause from preferring the appeal within the stipulated time. The delay application is, accordingly, rejected. 5.5 Even if for the moment the arguments of the appellant were to be accepted then also the period of limitation would have started from the date of the knowledge of the order in original which is 17.08.2022. In case of R. Ravichandran [2021 (377) E.L.T. 895 (Tri. - Chennai)] following has been held: "7. As per Section 128 as well as Section 153 of the Customs Act, 1962, any decision....
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....e manner, by affixing it on the notice board of the Customs House. In the instant case, we have seen from the records produced by the Revenue that the order was sent by registered post and it came back undelivered and thereafter, it was tried to be served by sending a person and the same also could not be done because the appellant was absconding. It is also seen from the records that the order was displayed on the notice board. Therefore the service of the order, as envisaged under Section 153 of the Customs Act, had been completed by way back in June, 2002. Therefore, the plea of the appellant that he got the order only in October 2012 after a gap of more than 10 years cannot be accepted. The Hon'ble High Court of Kerala in Chellappan v. Addl. Collector of Customs [1978 (2) E.L.T. J547 (Ker.)] has held that the modes of service provided in Section 153 are alternate methods by which attempts can be made to serve an order or decision under the Customs Act. Therefore, service by any of the modes is sufficient for the purposes of the said section. Viewed in this perspective, the service has been completed in the instant case way back in 2002. If the appellant had changed the addr....
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....stant Commissioner of Customs (Gr.5B) and order of remand were passed on 7-3-2012 and despatched on 8-3-2012 by speed post acknowledgement due. That letter was addressed to ETA General Pvt. Ltd., Seethakathi Chambers, 5th Floor, 688, Anna Salai, Chennai - 600 006. Therefore, the communication was sent only to the address as it has been referred to by the petitioner in the original proceedings as well as in the appeal memorandum. Therefore, the plea of non-service of notice or the impugned order to correct address is a fallacy. 10. Having considered the rival submissions, this Court is not inclined to accept the plea of violation of principles of natural justice or violation of Section 153 of the Customs Act. (1) Section 153 of the Customs Act reads as follows : - "153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served - (a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent; or (b) if the order, decision, summons or notice cannot be served in the manner provided in clause (a....
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....l with each file separately. 15. The fact remains that the Commissioner of Customs (Appeals) order dated 6-1-2010 was despatched on 8-1-2010 to the very same address namely ETA General Pvt. Ltd., Seethakathi Chambers, 5th Floor, 688, Anna Salai, Chennai - 600 006 and the petitioner does not deny receiving of the same. If the petitioner plea is that there was no building at all on that date, as to how the petitioner received the appellate authority's order is a question has to be answered by the appellant/petitioner and not by the respondents. This falsifies petitioner's plea of no service. " 5.9 In case of Rita Enterprises [2008 (221) E.L.T. 28 (Mad.)] following has been held: "14. It is not in dispute that Warehousing Corporation issued notice on 21-1-2003 and the same was sent by registered post as per the despatch register dated 25-1-2003 and the same was returned due to non-availability of correct address. The same is made clear as per the postal department reply dated 21-1-2004. The endorsement made is, "THE RL UNDER REFERENCE HAD BEEN RETURNED TO SENDER (YOU) ON 29-1-2003 AND THE SAME WAS DELIVERED TO YOU BY VIRUGAMBAKKAM PO ON 1-2-03". The reason....
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..... From the perusal of sub-section (2) of Section 37C of the 1944 Act. we have no hesitation to hold that the envelop containing the order was despatched under Registered A.D. Post on the correct address. Therefore, it shall be deemed to have been served on the date on which the letter is tendered or delivered by post or a copy thereof is affixed in the manner provided under sub-section (1) by affixing the same to some conspicuous part of the factory or warehouse or other place of business. In the present case, the assessee has not alleged even a single word that the envelop containing the order was not having the correct address. 7. The Apex in M.A. Mohammed Ismail v. State of Tamil Nadu, 1999 (10) JT 372, has held as under :- "Apart from Section 114 of the Indian Evidence Act under which a presumption would arise in respect of letters sent by registered post that they were delivered to the addressee if the address was correct, a presumption will also arise under Section 27 of the General Clauses Act, 1897 which provides as under : "27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or ....
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.... have also carefully examined Section 37C of the 1944 Act, Section 27 of the General Clauses Act and Section 144 of the Indian Evidence Act. Having examined, we are of the view that it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. It is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. In the present matter, assessee failed to discharge his burden and sending the order by registered post at the correct address is sufficient compliance." 5.11 In the case of Indore Municipal Corporation [2016 (338) E.L.T. 567 (M.P.)] following has been held "12. In this case, admittedly copy of the order was sent to the appellant by speed post. Section 27 of General Clauses Act provides that presumption of service would be raised when document is delivered by registered post. So far as the speed post is concerned, the provision has been made in the Central Excise Act, 1944, however, no such corresponding amendment was made in the General Clauses Act. Resultantly, no presumption can be raised in respect of document sent by speed po....
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....appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. 9. Learned counsel for the Appellant has emphasized on certain decisions, more particularly, I.T.C.s case (supra) to contend that the High Court and this Court in appropriate cases condoned the delay on sufficient cause being shown. 10. Sufficient cause is an expression which is found in various statutes. It essentially means as adequate or enough. There cannot be any straitjacket formula for accepting or rejecting the explanation furnished for delay caused in taki....