TMI Blog2008 (10) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... 008-EX(PB) - Dated:- 10-10-2008 - Justice S.N. Jha, Shri M. Veeraiyan, JJ. REPRESENTED BY : Shri Bipin Garg, Advocate, for the Appellant. Shri Surinder Shah, DR, for the Respondent. [Order per : Justice S.N. Jha, President]. This is an application by the appellant for condonation of approximately 797 days delay in filing the appeal. The order-in-appeal under challenge in the present appeal was issued by the Office of the Commissioner (Appeals) under memo nos. 133-138, dated 16-2-2006. It appears that apart from the despatch of a copy of the order under said memo dated 16-2-2006, the same was also sent to the appellant through speed post on 11-3-2006. In course of hearing learned DR produced before us photocopy of the po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acknowledgement in support of evidence of the service of the order upon the Appellant on any particular date. 3. That the Applicant further submit that presuming without admitting if the objections raised by the Department is sustainable then there is a delay of approx. 797 days which is unintentional and bona fide and beyond the control of the Appellant and is required to be condoned for the delay, if any. PRAYER In view of the aforesaid it is therefore prayed that the delay of approx. 797 days as per objection of the department be held as not sustainable and the delay in filing of appeal, which was beyond the control of the Appellant, may kindly be condoned and the Appeal be listed to its original number. Since the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order has no merits as he has not named the person receiving the order on its acknowledgement. 3. On behalf of the appellant, learned Counsel submitted that in the absence of any proof of the actual receipt of the copy of the order, the case of the Department that copy of order-in-appeal was, in fact, sent on 16-2-2006/11-3-2006 cannot be believed. In support of his submission, counsel placed reliance on the decision in Margra Industries Ltd. v Commissioner of Customs, New Delhi, 2006 (202) E.L.T. 244 (T-LB) = 2008 (10) S.T.R. 81(Tri.-LB). 4. Section 37C of the Central Excise Act, 1944 lays down the manner of service of decisions, orders, summons, etc. Sub-section (1) thereof provides - (a) by tendering the decision, order, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apparently is devoid of any substance. The service by speed post stands on the same footing as registered post. When the Act was enacted in 1944, there was no such thing as speed post . We are inclined to think when an order, summon is sent by speed post or registered post, there is a presumption that it is duly received by the addressee. And, therefore, there being adequate proof of the fact that the copy of the order was despatched by speed post, we are satisfied that clause (a) stood satisfied. When there is presumption that it is duly served on the addressee, onus would lie on the person to prove to the contrary that it was not so served. 7. It would not be out of place to mention here that the appellant attended the personal hearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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