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TMI Blog2014 (7) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... th a direction to decide the appeal/stay application in accordance with law. 2. The appeal filed by the appellants has been rejected in the Miscellaneous Order impugned before me on the ground that the same was filed beyond the condonable period and therefore has to be rejected. 3. In this case the order-in-original was passed on 29.11.2011 and sent by speed post to the appellant. Department has verified with Postal Department and obtained a copy of the register/document maintained by the Postal Department wherein the concerned speed post article has been shown as delivered on 14.12.2011. The assessee's contention was that the delivery should have been made by registered post acknowledgment due and speed post is not a mode of dispatch and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute. The relevant paragraph is paragraph 5 which is reproduced for better appreciation: 5. We have given careful consideration to the submissions. It is not in dispute that a copy of the order-in-original was sent to the assessee by speed post whereas the legal requirement was to send it by registered post with acknowledgement due. The purpose of this kind of dispatch by registered post with acknowledgement due under Section 37C ibid is to ensure delivery of the postal article to the addressee and to enable him to acknowledge its receipt. This purpose cannot be served by a mere speed post without acknowledgement due required under the above provision of law. Thus, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Commr. of Income Tax, Ranchi - [2012-TIOL-579-HC-Jharkhand-IT], the Tribunal observed that under Section 282 of Income Tax which was under consideration the provision requiring order or decision to be sent to the person by post. The Hon'ble High Court took the view that the words 'by post would cover speed post or registered post and different types of post. I find that this decision is not applicable. In the case of Amidev Agro Care Pvt. Ltd. Vs. Union of India [2012 (26) S.T.R. 299 (Bom.)], Hon'ble High Court also took the same view. Further it has to be noted that in that case there was no proof of delivery produced by the department. Therefore this decision may not be applicable to the fact of this case also. The next question was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t correct. 6. However at this stage, the learned AR submitted that in the case of Cravina Fabrics Pvt. Ltd. Vs. CCE, Belapur [2011 (268) E.L.T. 387 (Tri.-Mumbai)], Tribunal had taken the view that dispatch by speed post with acknowledgment due would be sufficient. Unfortunately in this case there is no evidence to show that the dispatch was made by speed post with acknowledgment due. In my opinion speed post with acknowledgment due can be equated with registered post with acknowledgment due and in the absence of any evidence to show that the order was dispatched by speed post with acknowledgment due, I am unable to consider this decision also. In the result miscellaneous order passed by the Commissioner (Appeals) rejecting the appeal canno ..... X X X X Extracts X X X X X X X X Extracts X X X X
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