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2016 (11) TMI 20 - CESTAT MUMBAI

2016 (11) TMI 20 - CESTAT MUMBAI - TMI - Maintainability of appeal – limitation - order not communicated to the concerned person - mode of communication of order - Section 37C (1) (A) of the Act - service of order by speed post is not a valid service - reliance placed on the decision of AMIDEV AGRO CARE PVT LTD Versus UNION OF INDIA AND OTHERS [2012 (6) TMI 304 - BOMBAY HIGH COURT] where it was held that As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the .....

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been received by the appellant, the decision of Hon’ble High Court of Bombay in the case of Amidev Agro Care Pvt. Ltd. can be differentiated on fact. The mode of communication of order is relevant only so long as the actual receipt of the communication is not disputed. Once the receipt of communication is not disputed, the mode of communication becomes irrelevant - the appeal dismissed - decided against appellant. - APPEAL No. ST/86003/15, Appln. No. ST/MA(Ors)/93081/16 - Order No. M/90453/16 .....

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order-in-original was dispatched to the appellant by speed post during the period when sending of order by speed post was not sufficient compliance to the provisions of Section 37C (1) (A) of the Act. Aggrieved by the said order, the appellant are before this Tribunal. 2. The learned Counsel for the appellant argued that the order was sent by speed post and was received by the watchman who had in turn given to the office bearer in the year 2013. No date has been mentioned as to when the order wa .....

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Hon ble High Court has observed as follows: 4. Section 37C of the Act reads thus : Section 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; (b) if the decision, order, summons or no .....

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h 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 to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1). 5. As per Section 37C(1)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Exci .....

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he order is said to have been sent by speed post and there is no evidence of tendering the decision to the assessee. 6. In these circumstances, in our opinion the decision of the CESTAT that the requirements of Section 37C have been complied with cannot be accepted. As per Section 37C(1)(a) of the Central Excise Act, 1944, it was obligatory on the part of the Revenue, either to tender a copy of the decision to the assessee or to sent it by registered post with acknowledgment due to the assessee .....

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f the order and therefore, the question of limitation does not arise. 3. The learned AR appearing for the Revenue argued that the Hon ble High Court of Orissa in the case of Jay Balaji Jyoti Steel Ltd. - 2015 (37) STR 673 (Ori). After considering the decision of Amidev Agro Care Pvt. Ltd. observed as follows: 5. On perusing the judgments referred to by the learned Senior Counsel for the petitioner, it appears that whereas the impugned order has been communicated by speed post , in the case of Am .....

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he Hon ble High Courts have taken into consideration the definition of registered post which has been provided under Section 28 of the Indian Post Office Act, 1898 which is quoted hereunder : Section 28. Registration of Postal articles. - The sender of a postal article may, subject to the other provisions of this Act, have the article registered at the post office at which it is posted, and require a receipt therefore; and the [Central Government] may, by notification in the [Official Gazette], .....

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B thereto which is quoted hereunder : Rule 66B. Inland Speed Post Service. - Inland Postal articles may be booked after obtaining receipts therefor, at the places specified in column (1) of the Schedule below and the post offices specified in the corresponding entries in column (2) of the said Schedule for delivery under the Inland Speed Post Service subject to the following conditions namely : (1) Inland Speed Post Service shall be available in respect of all classes of mails, which can be sent .....

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ces, receipts thereof are required to be issued and consequently, both speed post and registered post satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all is the charges payable are normally higher for speed post as the name suggests the delivery of such articles at an early date. 7. We are of the considered view that none of the judgments cited by the petitioner as noted hereinabove, the Hon ble High Cour .....

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y operate prospectively and not retrospectively. 9. We record the aforesaid contention merely to reject the same outright. It is well settled in law that where an amendment which is brought about is clarificatory in nature , the same would date back to the date on which the original provision was introduced. No doubt, prior to the amendment on 10-5-2013, the word registered post found mentioned in Section 35(C) of the Central Excise Act. In view of Section 28 of the Indian Posts Office Act, 1898 .....

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filed by the petitioner-company on 21-11-2014 claiming therein that the employee who received speed post packet on behalf of the company, is a Class-IV employee Miss Bengi Oram, who was not authorized by the company to do so and consequently, the company had initiated a disciplinary [action] against her. When such affidavit was filed, this Court directed vide its order dated 5-12-2014 calling upon the General Manager (Accounts) to file a further affidavit before this Court indicating as to whet .....

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detail factual position and seeking indulgence of the Court to withdraw the said additional affidavit dated 21-11-2014. The aforesaid facts are merely being recorded to indicate the manner in which the petitioner-company has sought to try and pass the blame on an employee in order to try and justify their admitted delay in filing of the appeal. 11. It appears that post amendment vide Finance Act, 2013 (17 of 2013) w.e.f. 10-5-2013, the following amendment came to be incorporated in Section 37C( .....

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Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorized agent, if any. On perusal of the aforesaid amended provision, it is clear that after the words sending it by registered post with acknowledgment due the words i.e. or by speed post with proof of delivery has been inserted. The aforesaid amendment itself would clearly shows that the amendment sought to be made is not only clarificatory The SLP filed against the said decision was dismissed after condo .....

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