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2006 (11) TMI 218 - HC - Central ExciseCondonation of delay in filing appeal - Service of decision - non appearance - whether the expression 'decisions' and words 'service of decisions' in Section 37C applies to decisions handed down by the CESTAT in appeal - HELD THAT:- We 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 despatch. Both Section 37C and Rule 35 will, therefore, have to be complied with. Since there is no proof of even the tender or delivery of the letter enclosing a copy of the order to the addressee by post, the deeming fiction in sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is not attracted in the present case. In other words, the respondents have not discharged the initial burden of showing that the order dated 22-7-1997 was in fact sent by the registered post to the appellant as contended by them. In our view, the Tribunal erred in examining whether there was any record 'of the order being returned undelivered to the addressee'. The Tribunal ought to have first examined whether in fact the order was tendered or delivered by post to the addressee as required by the law. We, accordingly, set aside the impugned order dated 15-7-2003 passed by the CESTAT. To avoid any further delay in deciding the appeal, and considering the fact that the appellant has, pursuant to the order of this Court, deposited the entire amount of duty and penalty demanded, we restore the Appeal of the file of the CESTAT. The parties will now appear before the CESTAT on 2-1-2007 and the CESTAT may pass appropriate orders for fixing a date of hearing of the appeal. The appeal is accordingly allowed with the above directions. There will be no order as to costs. The Registry is directed to send a certified copy of this order to the Registrar, CESTAT within a period of two weeks from today.
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