TMI Blog2011 (7) TMI 193X X X X Extracts X X X X X X X X Extracts X X X X ..... can say who exactly signed and who took delivery of the same but for the purpose of Section 37C, it is not relevant - In the case of Rajesh Kumar Jain vs. UOI 1999 (113) ELT 57 (Cal ) , the Hon ble High Court of Kolkata came to the conclusion that service of notice is complete either by tendering or sending the same by registered post - Decided against the assessee. - E/569 of 2010 - - - Dated:- 19-7-2011 - Mr. B.S.V. Murthy, J. For Appellant: Shri Anand Nainawati, Advocate For Respondent : Shri S.K. Mall, SDR Per : Mr. B.S.V. Murthy; The registry has listed the matter for final hearing whereas the stay petition has not been heard earlier. The issue involved is maintainability of appeal and whether the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, he held that the appeal is barred by limitation. Learned advocate submitted that in this case, appellant had submitted an affidavit by Mrs. Shilpa Devi wherein she had stated that she has not signed the postal acknowledgement slip and signature in acknowledgement reveals as Shilpa Devi Hiralal whereas, she puts her signature as Shilpa only. As an evidence to support this, she also submitted copy of a certificate issued by the bank certifying her signature, existing for the purpose of operating bank account. Therefore, he submits that appellant has not received copy of the order and it was not evidenced that his wife has received it. That being the position, it has to be held that the order was not communicated at all till the ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meant receives it. He also submitted that appellant has proved his bonafide by seeking certified copy after coming to know that the order has been passed against him and penalty has been imposed. This shows his bonafide and also shows that he would like to use his right to appeal and pursue the matter in legal forum. The submissions made by the learned advocate require examination of two issues, first one is whether in view of the bonafides of the appellants, he is entitled to relief and whether it is to be held that appellant was not barred by limitation. In my opinion, such a decision cannot be taken by the Tribunal which is a creation of statute. Therefore, even examination of the claim regarding bonafide in the appellant s submission, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rble also copy of order in original had been sent by registered post and the party had contested it. In that case, department had produced only register maintained by the postal authorities to show that the letter was delivered. In this case, the department has stronger case in the sense that postal acknowledgement signed by a person is available. Unfortunately neither the appellant nor department can say who exactly signed and who took delivery of the same but for the purpose of Section 37C, it is not relevant. In the case of Rajesh Kumar Jain also, Hon ble High Court of Kolkata considered several decisions on this issue and came to the conclusion that service of notice is complete either by tendering or sending the same by registered post ..... X X X X Extracts X X X X X X X X Extracts X X X X
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