TMI Blog2015 (10) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... e period of limitation - No proof having been filed to support such delivery, which is the mandatory requirement as per Section 37C(1)(a) – Question of delay does not arise as the appeal is filed within time - appeal restored before the tribunal – Appeal allowed in favour of the Appellant. - C.M.A. Nos. 164 and 165 of 2015, M.P. Nos. 1 of 2015 - - - Dated:- 27-2-2015 - R. Sudhakar and R. Karuppiah, JJ. Shri K. Jayachandran, for the Appellant. Shri V. Sundareswaran, for the Respondent. JUDGMENT Aggrieved by the order of the Tribunal in dismissing the appeals filed by it, the appellant/assessee is before this Court by filing the present appeals. 2. The appellant, a garment processing unit, engaged in the hiring of be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... num, the Department issued two show cause notices for the subsequent period making similar demand. Though the appellant brought to the notice of the Department about the order of this Court for the previous period and the direction to the Tribunal, the concerned adjudicating authorities passed separate adjudication orders against which the appellant filed appeals before the Commissioner (Appeals). Though the order of this Court was placed before the Commissioner (Appeals), however, order was passed directing the appellant to pay 25% of the service tax demanded as pre-deposit. In spite of several reminders and requests, the order passed by the Commissioner (Appeals) was not modified, against which the appellant preferred appeals before the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident from the letter written by the Superintendent (Appeals) to the appellant. Based on the said letter as also the written submissions of the Department, the appeals preferred by the appellant/assessee were rejected by the Tribunal stating that there is a delay in filing the appeals and, consequently, the assessee is before us by filing these two appeals. 9. The primary contention raised by the learned counsel appearing for the appellant is that Section 37C(1)(a) of the Central Excise Act, as it stood then, does not speak about service of notice through speed post . Further, it is submitted that proof of dispatch cannot be a proof of receipt and limitation should be reckoned only from the date of receipt of order. In the case on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... post with acknowledgment due, to the person for whom it is intended or his authorized agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), 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; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), 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. (2) Every decision or order passed or any sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aving not been a recognised/approved mode of service, it cannot be treated as service for reckoning the period of limitation. For the sake of argument, even if the order is said to have been delivered by RPAD on 9-5-2011, which apparently has not happened in this case, no proof having been filed to support such delivery, which is the mandatory requirement as per Section 37C(1)(a) of the Act, it is clear that the service of notice in the manner as prescribed under Section 37C(1)(a) has not been effected. 13. Further, it appears that the appellant was informed vide letter of the Superintendent (Appeals) dated 22-12-2011, wherein he was informed about the order dated 25-4-2011. Only thereafter, the appellant preferred the appeals, on 4-1-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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