TMI Blog2012 (5) TMI 554X X X X Extracts X X X X X X X X Extracts X X X X ..... red to the appellant or his authorised agent. Thus, in our considered view, it is clear case in which mandate of Section 37C(1)(a) have not been followed by the Revenue. As such, there can be no presumption of service of order-in-original sent to the appellant through speed post. That being the case, the order of the Commissioner (Appeals) which is based upon presumption of service of order sent by speed post cannot be sustained - Matter remanded back - Decided in favour of assessee. - E/2961/2011 - A/632/2012-EX(BR)(PB) - Dated:- 23-5-2012 - Ajit Bharihoke and Shri Rakesh Kumar, JJ. Shri J.P. Kaushik, Advocate, for the Appellant. Shri S.K. Panda, AR, for the Respondent. ORDER The matter is listed for arguments on the stay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that the appellant was served with the order-in-original in October, 2010 as such appeal having been filed after a period of five months from the date of serving of impugned order was barred by limitation. Accordingly, he dismissed the appeal on technical ground of limitation. 4. Shri J.P. Kaushik, learned Counsel for the appellant has submitted that the impugned order is not sustainable in law because the Commissioner (Appeals) has failed to appreciate that the appellant was not served with the copy of the order-in-original passed by the jurisdictional adjudicating authority. Learned Counsel further submits that Section 37C(1) of Central Excise Act, 1944 provides for the manner in which department is required to serve assessee with any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bottling Co. (P) Ltd. - 2010 (255) E.L.T. 321 (P H) and submitted that since the order-in-original was despatched through speed post at the correct address of the appellant there is presumption of service of attached unless there are circumstances to show that the order could not have been served on the appellant. 6. We have considered the rival contentions and perused the records. On perusal of the judgment of the Bombay High Court in the matter of Amidev Agro Care Pvt. Ltd., supra we find that the Bombay High Court in the above case have considered the judgment of the Punjab and Haryana High Court in the matter of CCE, Ludhiana v. Mohan Bottling Co. (P) Ltd. and held that the department is under legal obligation to comply with mandat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Central Excise (Appeals) was received for the first time on 26th February, 2010 would have to be accepted. Consequently, the decision of the CESTAT that the appeal filed by the assessee was time-barred cannot be sustained. 6. On reading of the above, it is apparent that as per Section 37C(1)(a), it was obligatory on the part of the Revenue either to tender a copy of the decision of the adjudicating authority to the assessee or to sent it by registered post with acknowledgement due to the assessee or its authorised agent. In this case, registered AD post mode was not adopted by the department for serving the appellant with copy of the order-in-original. There is no evidence on records to show that the copy of the order-in- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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