Sending order at correct address by registered post is deemed to be duly served unless assessee proves otherwise

CESTAT, NEW DELHI BENCH

Greenview Land & Building Con. Ltd.

V/s.

CCE, Chandigarh-II

FINAL ORDER NO. 59/A/475/12-CUS

STAY ORDER NO. ST/S/710/12-CUS.

ST/STAY NO. 953/2012

ST/A NO. 431/2012

MAY 30, 2012

ORDER

D.N. Panda, Judicial Member – On the previous occasion, there was direction to find out service of adjudication order. The appellant was given hearing by the learned Commissioner (Appeals). In para 7 of the order, he has recorded the relevant part as under:

“In the instant case, the Revenue has brought on record the said report of postal department as proof of actual delivery of the said registered letter to the addressee. The copies of the postal delivery report and dispatch register were supplied to the appellants at the time of personal hearing but the said report of postal department has not been disputed by the appellants and also that it is not a case where the appellants have shifted from the said premises to which the said letter was addressed and delivered. I also find that other correspondence such as show-cause notice and orders issued to the appellants during the corresponding period 2007-08 and 2008-09 were served upon them at the same address and there was no dispute regarding service of the said orders etc in other cases. Considering the facts on record, the impugned order has been valid served to the appellants on 3.1.08 as per the ratio of the above decision of larger bench in Marga Industries Ltd and also as per the provisions of section 37-C of the Central Excise Act, 1944.”

2. Learned Counsel says that there is an affidavit filed by the Director of the appellant indicating the persons on whom service of adjudication order was made. Appellant had no authorized person. Therefore, the above finding at page 3 of the appellate order is baseless.

3. We have perused the adjudication order resulting in demand of service tax of Rs. 19,10,774/-. Normally a Revenue officer shall not remain silent to recover demand without serving adjudication order giving rise to certain demand. No laxity on the part of adjudicating authority is apparent in this case.

4. Learned DR invites attention to page 55-56 of the appeal folder to demonstrate that the registered letter was addressed to the appropriate address and delivery thereof was confirmed by the postal department in terms of evidence they sent to the adjudicating authority. Bona fide of the Revenue officer is established from such communication and in absence of any mala fide or any cogent evidence to the contrary brought on record, his action cannot be questioned. There was proper service of the impugned order made by the adjudicating authority in accordance with law.

5. Learned Counsel relies upon the judgment of Allahabad High Court in the case of R.K. Agarwal v. CESTAT 2008 (221) ELT 486 (All.) to submit that there was no service of adjudication order. We have noticed that Hon’ble High Court of Allahabad in para 11 of the judgment found that there was nothing on record to establish that the petitioner in that case authorized anybody to receive the copy of the adjudication order. Accordingly, receipt of the adjudication order by authorized signatory could not be proved but that is not the case here.

6. The appellant also relied on the decision in the case of Matigara Rolling Mills (P.) Ltd v. CCE 2006 (193) ELT 132 (Cal.). This is a case where letter was sent to a factory which was under closure and closure was within the knowledge of the department. Such factual aspect is not in the present case.

7. The appellant also relied on the judgment in the case of CCE v. R.R. Tea Co. 1987 (31) ELT 728 (Trib.). This is a case where presumption of service in the normal course of article dispatched by post is rebuttable. We agree with the principle. But nothing could be rebutted.

8. We are guided by the judgment of Hon’ble High Court of Punjab & Haryana in the case of CCE v. Mohan bottling Co (P.) Ltd. 2010 (255) ELT 321 where it was held that it is for the assessee to rebut presumption of service by cogent evidence that in fact order was never served upon him. Order of Larger Bench of the Tribunal passed on 28.8.2006 in favour of the respondent was reversed. Larger Bench of Tribunal in that case had held that dispatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery of speed post. Thus according to judgment of Hon’ble High Court of Punjab & Haryana in Mohan Bottling Co (P.) Ltd.’s case (supra), it can safely be said that sending the order at correct address by registered post is a sufficient compliance of section 37-C of Central Excise Act, 1944 and it is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. The appellant in the present appeal in hand failed to discharge its burden of proof, we are able to notice this is a case of service on any authorized person, nor the case of closure of factory nor the case of rebuttal of presumption of by appellant. Thus both stay application and appeal fail to succeed. Accordingly both are dismissed.

NF