Case Law Details
HIGH COURT OF BOMBAY
Amidev Agro Care (P.) Ltd.
V/s.
Union of India
CENTRAL EXCISE APPEAL NO. 100 OF 2011
FEBRUARY 3, 2012
ORDER
1. – Admit on the following substantial question of law.
“Whether on the facts and in the circumstances of the case and in law, the CESTAT was justified in holding that the preconditions of Section 37C of the Central Excise Act, 1944 have been complied with and, therefore, the appeal filed by the appellant-assessee was barred by limitation ?”
2. In the present case, against the order-in-original dated 7th June, 2007 the assessee had filed an appeal and the same was dismissed by the Commissioner of Central Excise (Appeals) on 31st March, 2008. It is the case of the appellant-assessee that a copy of the order passed by the Commissioner of Central Excise (Appeals) on 31st March, 2008 was not served upon the assessee. It is only when the recovery proceedings were initialed, the assessee sought a copy of the order dated 31st March 2008 and the same was made available to the assessee on 26th February, 2010. Immediately thereupon the assessee filed an appeal before the CESTAT on 17th May, 2010. Hence, it is contended that the appeal filed is in time.
3. However, the CESTAT by the impugned order dated 28th January, 2011 Cravina Fabrics (P.) Ltd. v. CCE 2011 (268) ELT 387 (Tri. – Mum.) dismissed the appeal filed by the appellant-assessee as time-barred on the ground that a copy of the order of the Commissioner of Central Excise (Appeals) dated 31st March, 2008 was in fact dispatched on 1st April, 2008 by speed post and, therefore, the assessee must have received the order of Commissioner of Central Excise (Appeals) in 2008 itself. Relying upon the judgment of the CESTAT in the case of Classic Marbles v. Commissioner of Customs (Import) 2009 (245) ELT 679 (Tri. – Mum.) and the decision of the Punjab and Haryana High Court in the case of CCE v. Mohan Bottling Co. (P.) Ltd. 2010 (255) ELT 321 (Punj. & Har.), the dismissed the appeal by holding that once a copy of the order was forwarded by speed post on 1st April, 2008, the requirement of Section 37C of the Central Excise Act, 1944 were complied and, therefore, the appeal filed by the assessee on 17th May, 2010 is beyond time and the same is liable to be dismissed.
4. Section 37C of the Act reads thus :
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 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 notice cannot be served in the manner 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 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(l)(a), it was mandatory on the part of the Revenue to serve a copy of the order of Commissioner of Central Excise (Appeals) by registered post with acknowledgment due to the assessee. Admittedly in the present case, a copy of the order has not been sent by registered post. In these circumstances, it could not be said that the requirement of Section 37C has been complied with. The CESTAT was wrong in relying upon the judgment of the Punjab and Haryana High Court in the case of Mohan Bottling Co. (P.) Ltd. (supra), as in that case a copy of the order was sent by registered post, whereas in the present case, the 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(l)(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 or its authorized agent. In the present case, neither of the above have been complied with by the Revenue. Accordingly, the contention of the assessee that a copy of the order of Commissioner of Central Excise (Appeals) was received for the first time on 26th February, 2010 would have to be accepted. Consequently, the decision of the CESTAT that the appeal filed by the assessee was time-barred cannot be sustained.
7. In the result, the appeal is allowed by answering the question in favour of the assessee and against the Revenue with no order as to costs.
