TMI Blog2019 (7) TMI 899X X X X Extracts X X X X X X X X Extracts X X X X ..... .07.2016, but the Department has not been able to produce any evidence to show that the registered post which was sent on 26.07.2016 was actually delivered to the appellant - It is also matter of fact that the appellant came to know of such Order-in-Original only when the recovery proceedings were started against it and immediately it made an effort to get the copy of the Order-in-Original dated 26.07.2016 and thereafter the appeal had been filed in time before Commissioner (Appeals). We do not agree with the findings of the ld. Commissioner (Appeals) that the date of the service of the order as per the law is the date of sending of the same by registered post - The requirement of the acknowledgement due ensures that the decision or or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after have made an application under RTI for supply of copy of the Order-in-Original dated 26 July, 2016. The Department has supplied the copy of the Order-in-Original vide their letter dated 24 July, 2017 and the appellant have filed an appeal before the Commissioner (Appeals) as per the provisions of Section 35 of Central Excise Act, 1944 on 19.09.2017 well within the time period of two months as provided under the Central Excise Act. The ld. Commissioner (Appeals) vide his impugned Order-in-Appeal dated 30.11.2017 has held that the appeal has actually been filed after a lapse of period of nearly 14 months and he has also made the necessary enquiries with the Assistant Commissioner (Adjudication), who vide his letter dated 27 September, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidence of receipt of such order by the appellant. It has also been contended that it is only after the recovery proceedings were initiated by the Department that the appellant came to know of such Order-in-Original. Immediately, they made necessary efforts to get a copy of the impugned Order-in-Original by applying for the same through RTI. The ld. Advocate appearing for the appellant has relied upon the judgment of the Hon ble Rajasthan High Court in the case of M/s. R.P. Casting Pvt. Ltd. vs. CESTAT, New Delhi reported in 2016 (344) ELT 168 (Raj.) wherein it has been held by the Hon ble High Court that: 10. The perusal of Section 37C(1) of the Act of 1944 reveals mode of dispatch and, at the relevant time, it co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted in 2016 (338) ELT 567 (M.P.) as well as a citation in the case of M/s. Jay Balaji Jyoti Steels Ltd. vs. CESTAT, Kolkata reported in 2015 (37) STR 673 (Ori.). The ld. Departmental Representative has held that ordinarily it cannot be presumed that a communication sent by speed post has not been received by the addressee and burden lies with the addressee to prove that the correspondence has not been received by him. 6. Having heard both the sides and on perusal of the record of the appeal, we feel that as per the requirement of the Section 37 C of the Central Excise Act, 1944, which reads as follows:- Section 37C. Service of decisions, orders, summons, etc. - (1) Any decision or order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. Commissioner (Appeals) that the date of the service of the order as per the law is the date of sending of the same by registered post. We feel that this finding of the ld. Commissioner (Appeals) is contrary to the provisions of Section 35 C of the Central Excise Act, 1944, which provides that any order or decision sent by registered post has to be with acknowledgement due. The requirement of the acknowledgement due ensures that the decision or order which has been sent to any assessee has actually been served on him. Therefore, the Order-in-Appeal dated 30th November, 2017 deserves to be set aside and it has to be held that the Appeal was filed within time. While taking this view, we place reliance on the decision of the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision, order, summons or notice, or sending it by registered post with acknowledgment due (or any speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (54 of 1963), to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
