SERVICE OF ORDER BY SPEED POST IS NOT A VALID MODE OF SERVICE.

[Mr. M. GOVINDARAJAN]

                        Department of Posts started the Speed Post from August 1986 for providing time bound and express delivery of letters, documents and parcels across the country and around the world.  Now it is the market leader in the domestic industry.  It continues to be market leader in the express industry for the past 26 years with monthly volumes exceed 2 crores.  Now speed post delivers ‘Value for money’ to everyone everywhere, delivering local speed post up to 50 grams at Rs.25/- inclusive of service tax.  For corporate customers and to regular users speed post provides ‘Home collection’, credit facilities, on line tracking, account management and personalized services.  Such a mode of service is not accepted as a proper mode by the High Court in ‘Amidev Agro Care Private Limited V. Union of India’ – 2012 (26) STR 299 (Bom).

                        In this case the assessee had filed an appeal against the order-in-original dated 7^th June, 2007 before the Commissioner of Central Excise (Appeals) on 31.03.2008.  The said order was sent to the assessee by speed post.  The assessee did not receive the said order.  It is only when the recovery proceedings were initiated he came to know about this and he sought a copy of the order dated 31.03.2008.   He obtained the copy of the order on 26.02.2010 and he filed an appeal before the Tribunal on 17.05.2010.  According to the assessee he filed the appeal within the limitation period.

                        The Tribunal by its order dated 28.01.2011 dismissed the appeal filed by the assessee as time barred on the ground that a copy of the order of the Commissioner of Central Excise (Appeals) was in fact dispatched to him on 01.04.2008 by speed post and therefore the assessee must have received the same in 2008 itself.  The Tribunal held that once a copy of the order was forwarded by speed post the requirement of Section 37C of the Central Excise Act, 1944 were complied and therefore, the appeal is beyond time and the same is liable to be dismissed.

                        Against this order the assessee filed an appeal before the High Court raising the substantial question of law – “Whether on the facts and circumstances of the case and in law the CESTAT was justified in holding that the pre-conditions of Section 37C of the Central Excise Act, 1944 have been complied with and, therefore, the appeal by the appellant assessee was barred by limitation?”

                        The High Court analyzed the provisions of Sec. 37 C of the Act.   Section 37C provides the service of decisions, orders, summons etc.,  It provides that any decision  or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,-

• By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorized agent, if any;
• If the decision, order, summons or notice cannot be served in the manner provided above, 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;
• If the decision, order, summons or notice cannot be served in the manner provided above, 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.

Every decision or order passed or any summons or notice issued under this Act or the rules made there under, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided above.

                        The High Court held that as per Section 37C it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee.   Admittedly in the present case, a copy of the order has not been sent by registered post.  In these circumstances, the High Court held, that it could not be said that the requirement of Section 37C has been complied with.   Accordingly the contention of the assessee that a copy of the order of Commissioner of Central Excise (Appeals) was received for the first time on 26.02.2010 would have to be accepted.  The decision of the Tribunal that the appeal filed by the assessee was time barred cannot be sustained.  The High Court allowed the appeal.

                       In this regard it is to point out that speed post is a popular mode of service.  The delivery of the letter can be tracked in the web site of the postal department and the delivery could be confirmed.  It is faster mode than registered post.  Therefore Section 37C may be suitably amended to incorporate ‘Speed post’ as one of the modes for delivery of decision, order, summons or notice.