TMI Blog2016 (1) TMI 824X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of the said section. The amended provision of Section 37C(1)(a) ibid effective from 10.05.2013 allows sending of the orders by “speed post with proof of delivery”. It is admitted by Revenue that in this case, it has no proof of delivery of the primary adjudication order. It is not in dispute that the appeal 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hand 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 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) Jay Balaji Jyoti Steels Ltd. Vs. CESTAT, Kolkatta [2015 (37) STR 673 (Ori.)] (ii) Mirzapur Electrical Industries Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 application being clarificatory in nature, we notice that Allahabad High Court in the case of Mirzapur Electrical Industries Ltd. Vs. CCE, Allahabad (supra) has indeed held that registered post and speed post are same method of service and Orissa High Court in the case of Jay Balaji Jyoti Steels Ltd. Vs. CESTAT, Kolkatta (supra) also held that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of Kunhaymmed Vs. State of Kerala [2001 (129) ELT 11 (SC)], there is no merger of the Orissa High Court judgment with the orders of the Supreme Court and therefore the said Orissa High Court judgment continues to have the vitality of a High Court order and does not obtain the vitality of a Supreme Court order. 6. It is not in dispute that the appeal was filed within the stipulated period after the appellant obtained copy of the primary adjudication order. 7. 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. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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