TMI Blog2006 (11) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... se. In other words, the respondents have not discharged the initial burden of showing that the order dated 22-7-1997 was in fact sent by the registered post to the appellant as contended by them. In our view, the Tribunal erred in examining whether there was any record 'of the order being returned undelivered to the addressee'. The Tribunal ought to have first examined whether in fact the order was tendered or delivered by post to the addressee as required by the law. We, accordingly, set aside the impugned order dated 15-7-2003 passed by the CESTAT. To avoid any further delay in deciding the appeal, and considering the fact that the appellant has, pursuant to the order of this Court, deposited the entire amount of duty and penalty demanded, we restore the Appeal of the file of the CESTAT. The parties will now appear before the CESTAT on 2-1-2007 and the CESTAT may pass appropriate orders for fixing a date of hearing of the appeal. The appeal is accordingly allowed with the above directions. There will be no order as to costs. The Registry is directed to send a certified copy of this order to the Registrar, CESTAT within a period of two weeks from today. - VIKRAMA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the appellant as well as the service of the order dated 22.7.1997 on the appellant. 6. On 29.10.2004 the respondent filed an affidavit including photo copies of the covering letter dated 30.7.1997 addressed by the Assistant Registrar (A), CESTAT to the appellant by 'Registered A.D.', enclosing a copy of the order dated 22.7.1997. It is stated in this affidavit that the appeal to this Court under Section 35G of the Act would lie only 'if the High Court is satisfied that the case involves a substantial question of law.' It is submitted that the appellant's contention, based on Section 37C of the Act, that the order of the CESTAT had to be mandatorily served on the appellant, was misconceived inasmuch as the procedure governing the CESTAT was contained in Section 35D of the Act read with Rule 35 of the CEGAT (Procedure) Rules, 1982. 7. On 9.2.2005 Dr. Anil Baveja, the sole proprietor of the appellant died. The application being CM.No. 9166 of 2005 for bringing his legal representatives on the record was allowed on 17.8.2005. 8. On 18.1.2006, the respondent was directed to keep ready for perusal by the Court, the relevant records relating to the dispatch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member where - (a) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (b) the amount of fine or penalty involved, does not exceed. 35 G Appeal to High Court - (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal on or after the 1st day of July, 2003 (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for the purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. (2) The Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be - (a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other party; (b) acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly where order was passed by the authorities under the Act and not where the orders are passed by the CESTAT. The procedure of the CESTAT is governed by Section 35D read with Rule 35 of the CEGAT (Procedure) Rules, 1982 which reads as under: Rule 35 Communication of orders to parties: Any other passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondent either in person or by registered post. In other words, it is submitted that Rule 35 only requires a copy of the order of the CESTAT to be sent by registered post and is not a mandatory requirement that such order should also be served on the addressee as required by Section 37C. 13. These contentions, in our view, give rise to a substantial question of law, viz., whether the expression `decisions' and words `service of decisions' in Section 37C applies to decisions handed down by the CESTAT in appeal' We Therefore negative the preliminary objection raised and proceed to answer the substantial question of law that arises for consideration. 14. We are unable to agree with the submissions of the respondent. The wording of Section 37C does not exclude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nowledgment due card was received from the addressee bearing the addressee's signature. Since there is no proof of even the tender or delivery of the letter enclosing a copy of the order to the addressee by post, the deeming fiction in Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is not attracted in the present case. In other words, the respondents have not discharged the initial burden of showing that the order dated 22.7.1997 was in fact sent by the registered post to the appellant as contended by them. In our view, the Tribunal erred in examining whether there was any record 'of the order being returned undelivered to the addressee'. The Tribunal ought to have first examined whether in fact the order was tendered or delivered by post to the addressee as required by the law. 17. We, accordingly, set aside the impugned order dated 15.7.2003 passed by the CESTAT. To avoid any further delay in deciding the appeal, and considering the fact that the appellant has, pursuant to the order of this Court, deposited the entire amount of duty and penalty demanded, we restore the Appeal No. E/374/90 NB(A) to the file of the CESTAT. The pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
