Advocate Anandaday Misshra
The service of an order has had always been the sole issue before the courts of law when they had to dispose an application for condonation of delay .
The said issue was dealt in detail by Honourable High Court of Bombay in matter of Amidev Agro Care Pvt Ltd Vs U.O.I & Ors as reported in 2012-TIOL-395-HC-MUM-CX = 2012 (279) E.L.T. 353 (Bom.) = 2012 (26) S.T.R.299 (Bom.) Their Lordship held in their operative order as below :
“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 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 subsection (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 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 P & H High Court in the case of Mohan Bottling Company (P) Limited (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(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 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.”
The same ratio was upheld in the recent decision of Honourable Tribunal in the matter of BPL-BBC Joint Venture Vs Commissioner of Service Tax, Mumbai II as reported in 2014-TIOL-2572-CESTAT-MUM
1. 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 Excise (Appeals) by registered post with acknowledgment due to the assessee .
2. The onus always lies on the authority passing an order to prove with documentary evidence that a particular order after being passed was properly served as well .
3. Speed post is not considered as proper service in as much as no acknowledgement can be produced in speed post.
Before departing i must caution that an assessee should also avoid sending an appeal by speed post as there wont be any acknowledgement and this case can be applied in vice versa manner to them as well .
(Advocate Anand Mishra, AMLEGALS– The author is a leading indirect tax advocate handling cases in CESTAT & High Courts of India. He can be contacted on email@example.com and for more please refer www.amlegals.com)