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M/s Kanwal Coal Carrier Pvt Ltd, M/s Joginder Coal Transport Pvt Ltd, M/s Swastik Coal Carriver Pvt Ltd Versus Commissioner of Central Excise And Service Tax, Bhopal

2016 (3) TMI 526 - CESTAT NEW DELHI

Stay application - Appeal rejected against primary adjudication authority - Period of limitation - Orders claimed to have been sent by speed post were not received and when received the copies thereof, filed the appeals within the prescribed period - Held that:- as appeals were filed within the stipulated period after the appellants obtained copies of the primary adjudication orders, the requirement of pre-deposit is waived off the appeals are allowed. - Stay granted - Application Nos. ST/STAY/5 .....

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iod and therefore were barred by time. 2. The appellants have contended that the primary adjudication orders claimed have to be sent by speed post were not received by them and when they received copies thereof, they filed the appeals within the prescribed period. They 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 .....

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her hand argued that there was presumed service when orders were 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 orders alt .....

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at 2015 (40) STR J133 (SC). 4. We have considered the contentions of both sides. During the relevant period Section 37C(1) (a) ibid 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 auth .....

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ed as a mode of service under Section 37C of Central Excise Act, 1944 prior to 10.05.2013. Regarding the contention of presumed service of orders when they were 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 fil .....

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d post is also to be treated as registered post and that amendment to Section 35C(1)(a) ibid to include speed post was clarificatory in nature and would 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 orders were required to be sent by RPAD, sending them by speed post w .....

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