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2016 (1) TMI 824 - CESTAT NEW DELHI

2016 (1) TMI 824 - CESTAT NEW DELHI - TMI - Delay in filing of appeal before Commissioner (Appeals) - Date of service of order in original - Revenue argued that there was presumed service when order was sent by Registered Post with Acknowledgement Due (RPAD) as per Section 37C(1)(a) ibid. Revenue also argued that amendment to Section 37C ibid to include speed post with proof of delivery as a mode of service with effect from 10.05.2013 was clarificatory in nature and therefore had retrospective a .....

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l was filed within the stipulated period after the appellant obtained copy of the primary adjudication order. - In the light of the foregoing analysis, we waive the requirement of pre-deposit and allow the appeal by way of remand to the Commissioner (Appeals) with the direction to take up the appeal along with stay application and decide the same on merit. - Application No.ST/STAY/51418/2014-CU[DB] In Appeal No.ST/51206/2014-CU[DB] - Final Order No.50053/2016 - Dated:- 5-1-2016 - SHRI G. RAGHURA .....

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r claimed have to be sent by speed post was not received by it and when it received copy thereof, it filed the appeal within the prescribed period. It also contended that service by speed post is not in accordance with provisions of Section 37C of Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 and therefore, the Commissioner (Appeals) was not justified in rejecting the appeal as time barred. It cited the following judgments in support of its contentions:- (i) Premier Garm .....

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r Section 37C(1)(a) ibid. Revenue also argued that amendment to Section 37C ibid to include speed post with proof of delivery as a mode of service with effect from 10.05.2013 was clarificatory in nature and therefore had retrospective applicability. Ld. Departmental Representative however agreed that Revenue did not have the evidence of delivery of the impugned order although Revenue has the evidence of having despatched it by speed post. Revenue cited the following judgments in its support:- (i .....

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bid read as under:- 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, - (a) By tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorized agent, if any: Thus as per the said Section, the primary adjudication order was required to be sent by RPAD. Bombay High Court i .....

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r when it was sent by speed post, we find that Madras High Court in the case of OSA Shipping Pvt. Ltd. Vs. CCE, Chennai (supra) condoned delay in filing appeal even when the primary adjudicating order was sent by RPAD by observing that Revenue did not produce the acknowledgement card and the appellant did not stand to gain anything by delaying the filing of appeal. 5. Regarding Revenue s contention that speed post is also registered post and the amendment to Section 35C(1)(a) has retrospective a .....

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d date back when the original provision was introduced. While both these judgments do state that speed post is to be treated as registered post, they clearly fall short of stating that a speed post is to be treated as RPAD. As during the relevant period, the primary adjudicating order was required to be sent by RPAD, sending it by speed post would not fulfil the requirement of the said section. The amended provision of Section 37C(1)(a) ibid effective from 10.05.2013 allows sending of the orders .....

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