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Indore Municipal Corporation, Indore Versus Commissioner of Central Excise (Appeals) , & Others

2016 (8) TMI 790 - MADHYA PRADESH HIGH COURT

Rejection of cross objections as time barred - Whether the learned Tribunal was justified in dismissing the appeal of the appellant on account of delay in filing of appeal before the respondents as the order in original passed by the Additional Commissioner (Appeals) was never delivered to the appellant - appellant has been providing space for installing the hoardings to the advertising agency and charged advertisement tax for the same - Held that:- admittedly copy of the order was sent to the a .....

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nst the appellant that when the order was sent to them by speed post, it would have been reached in ordinary coarse of nature, and therefore, burden lies on the appellant to prove that speed post sent by the respondents was not delivered to them as provided for by sub Section 2 of Section 37-C of the Act. When no such evidence is produced by the appellant, it may be presumed that the speed post must have reached the office of the appellant in due course. - It was observed by the Appellate A .....

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e Authority on 26.11.2010 and he was granted time by the authority to file cross-objections within one week, which was filed on 03.12.2010, and which were taken on record, it cannot be said that cross objections filed by the appellant was not filed in time and were time barred. Accordingly, in considered opinion of this Court, the Appellate Authority and the learned appellate Tribunal erred while taking the cross objections also as time barred. Hence, this appeal is partly allowed in respect of .....

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CEX/000/APP/357&358/2011 dated 09.09.2011 by which the learned Commissioner (Appeals) disposed of by a common order, filed by the Revenue, appeal No.246/2011 and appeal filed by the present appellant No.492/2011 and also against the order passed by the learned Custom Excise and Service Tax Appellate Tribunal (hereinafter called 'the Appellate Tribunal') in Service Tax Appeal No.1803/2011. 2. Inadvertently, this appeal was admitted without framing substantial question of law, and ther .....

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Commissioner (Appeals) was never delivered to the appellant ? 4. The facts relevant for disposal of this appeal are that appellant is a statutory body under Madhya Pradesh Municipal Corporation Act, 1956 and is constituted under Section 243-Q of Constitution of India. The appellant has been providing space for installing the hoardings to the advertising agency and charged advertisement tax for the same. However, such activity of the appellant is not covered under the heading of Sale of Space or .....

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lso interest and penalty was also demanded. The appellant filed a reply to the notice on 28.10.2009. The Additional Commissioner of Central Excise Devision-Indore passed the order in original bearing No.175/ADC/ST/IND/2009-2010 dated 30.03.2010 and confirmed the total demand of service tax amount to ₹ 5,19,764/- under Section 73 of the Finance Act, 1994 and also imposed interest and penalty thereon. Copy of the order passed in original dated 30.03.2010 was not received by the appellant. 6. .....

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entative of the appellant appeared for personal hearing on 26.11.2010 and submitted that they had not been able to prepare cross-objections due to non receipt of original order and review order, and therefore, they may be granted a week's time to file cross-objections. Their plea was accepted and cross-objections were filed on 03.12.2010. On the same date, the appellant also filed an appeal against the order passed in original as well as the review order before the appellate authority which .....

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by the Adjudicating Authority in his impugned Order. I observe that the Adjudicating Authority has mentioned in his impugned Order that, Section 78 has been amended w.e.f. 10.05.2008 vide which provision of Section 76 shall not apply where penalty is payable under Section 78 of the Finance Act, 1994 . And perhaps under this notion, he has not imposed any penalty under Section 76 of the Finance Act, 1994. As the demand of Service Tax in this case pertains to the period 01.05.2006 to 30.10.2006 an .....

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able on the respondent the impugned Order is modifiable to this extent and accordingly I hold. 7.2 Further, I observe that after filing of Appeal No.246/2010 by the revenue on 10.06.2010, copy of the appeal, copy of the impugned Order and copy of the review Order were sent to the respondent on 17.06.2010, with directions to file memorandum of cross objection within 45 days of receipt of this notice and thereafter a series of letters were issued to the respondent for doing the same. All these let .....

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ppellate Tribunal, the learned appellate Tribunal passed the following order in this appeal :- None present for the appellant nor there is any application for adjournment. Appeal before Commissioner (Appeals) was time barred as is mentioned in Para 7.3 of first appellate order. Adjudication order was dispatched on 1.4.2010 to the appellant but appeal against that order came before learned Commissioner (Appeals) on 3.12.2010 which was after 8 months from the date of communication of adjudication .....

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ent to the appellant by speed post and also letters were written to the concerning Post Office for supplying the information of delivery of speed post to the appellant. However, no reply was received from the Post Office. 9. The statutory provisions in respect of service of decisions, orders, summons etc. incorporated in Section 37 of Central Excise Act, 1944 (hereinafter called 'the Act') as under :- 37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or a .....

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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 mater 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 summons or notice issued under this Act or the rules made thereunder, shall be deemed t .....

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r any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary coarse of post. 11. Learned counsel for the appellant submits that speed post sent by the respondent, never reached to their office. In response, the learne .....

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bserved that the assessee failed to discharged his burden, and therefore, it is sufficient compliance of provisions of Section 37 of the Act. 12. In this case, admittedly copy of the order was sent to the appellant by speed post. Section 27 of General Clauses Act provides that presumption of service would be raised when document is delivered by registered post. So far as the speed post is concerned, the provision has been made in the Central Excise Act, 1944, however, no such corresponding amend .....

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