2014 (4) TMI 462 - HC - Central Excise

Maintainability of appeal - Bar of limitation - Held that - Order dated 21.1.2011 was dispatched to the petitioner by registered post. Be that as it may, in order to attract deeming provision regarding service under sub-section (2) of Section 37C of Act, 1944, date of tendering or delivery of such decision/order sent by post has to be ascertained since it is only that date on which delivery of order sent by post shall deemed to be the date of service. In the present case no such date has been ascertained by Appellate Authority and it has simply presumed that since order was sent by registered post, it must have been served upon petitioner and appeal filed in 2013, is thus barred by limitation - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
Appeal rejection on the grounds of limitation under Section 85 of Central Excise Act, 1944.

Analysis:
The petitioner's appeal was rejected by the Commissioner (Appeals) as being time-barred since the order appealed against was dated 21.01.2011, and the appeal was filed in 2013. The petitioner argued that he was not served the order in the manner prescribed by Section 37C(1) of the Act, and only became aware of it later. The Appellate Authority held that the order was issued and dispatched on 21.01.2011, making the appeal time-barred. However, the Court noted that the Appellate Authority failed to determine the date on which the order was actually tendered or delivered to the petitioner to trigger the deeming service provision under Section 37C(2) of the Act.

The Court highlighted Section 37C of the Act, which governs the service of decisions, orders, summons, etc. It specifies various methods of service, including by registered post with acknowledgment due. The Court emphasized that for deeming service under Section 37C(2) to apply, the date of tendering or delivery of the decision/order sent by post must be established. In this case, the Appellate Authority did not ascertain this crucial date and merely presumed that since the order was sent by registered post, it was served on the petitioner, leading to the appeal being considered time-barred.

The Court found that the Appellate Authority failed to consider the actual date on which the order dispatched by registered post was tendered or delivered to the petitioner to trigger the deeming service provision. Consequently, the appellate order was deemed unsustainable. The Court partially allowed the writ petition, setting aside the Commissioner (Appeals) order and remanding the matter for fresh consideration. The Commissioner (Appeals) was directed to determine when the order was actually tendered or delivered to the petitioner to establish the date of service and then assess whether the appeal was within the time limit.

In conclusion, the Court partly allowed the writ petition, overturning the Commissioner (Appeals) order and instructing a reassessment of the petitioner's appeal to ascertain the actual date of service of the order. The petitioner was also awarded costs amounting to Rs.2,000.