CESTAT, BANGALORE BENCH
Balarami Reddy & Co.
Commissioner of Central Excise, Hyderabad
STAY ORDER NO. 1482 OF 2012
FINAL ORDER NO. 603 OF 2012Online GST Certification Course by TaxGuru & MSME- Click here to Join
APPLICATION NO. ST/STAY/671 OF 2010
APPEAL NO. ST/1205 OF 2010
AUGUST 21, 2012
P.G. Chacko, Judicial Member
This application filed by the appellant seeks waiver and stay in respect of the adjudged dues. On a perusal of the records and hearing both sides, we are of the view that the appeal itself requires to be finally disposed of at this stage. Accordingly. after dispensing with pre-deposit we take up the appeal.
2. This appeal is directed against the appellate Commissioner’s order dismissing the assessee’s appeal (filed against an adverse order of the original authority) as not maintainable on the ground of limitation. A copy of the order-in-original was received by the assessee on 6/1/2010 and an appeal against that order was filed with the Commissioner (Appeals) on 5/2/2010. Upon scrutiny of the records, the learned Commissioner (Appeals) found that a copy of the order-in-original dated 26/9/2008 had been issued to the assessee by speed post and that the party had not raised any grievance regarding non-receipt of hearing notices issued to the same address. The appellate authority, accordingly took the view that the order-in-original must have been served on the assessee as early as in September, 2008. Consequently, the appeal filed by them on 5/2/2010 was heavily time-barred with reference to section 85(3) of the Finance Act 1994. The appeal thus came to be dismissed as time barred.
3. The learned counsel for the appellant submits that as a matter of fact, the appellant did not receive any copy of the order-in-original in 2008. It is submitted that, in the wake of a demand notice, the appellant on their own accord, collected a copy of the order-in-original from the Superintendent of Central Excise on 6/1/2010 and subsequently, filed the appeal with the Commissioner (Appeals). Learned counsel refers to the provisions of section 37C of the Central Excise Act and submits that the original authority ought to have sent a copy of its order by registered post with acknowledgment due. But, however, chose to issue the order by speed post and that too, without A.D. card. It is argued that the dispatch was in accordance with relevant provisions and, therefore, the appellant cannot be faulted for any delay of their appeal before the Commissioner (Appeals). Learned counsel in this connection relies on the Hon’ble High Court’s judgment in Amidev Agro Care (P.) Ltd. v. Union of India  36 STT 147 wherein dispatch of an order-in-appeal by speed post was held to be not a valid service on the assessee.
4. Learned Dy. Commissioner (A.R.) on the other hand relies on another High Court decision viz. Milan Poddar v. CIT  24 taxman.com 27 (Jharkhand) wherein the Hon’ble High Court was called upon to determine whether a dispatch of notice by speed post was in accordance with section 282 of the Income-tax Act 1961. The Hon’ble High Court accepted the speed post to be sufficient for purposes of section 282 ibid. Learned Dy. Commissioner (A.R.) seeks to strike a parallel between that case and the instant case. He submits that, in the present case, the dispatch by speed post is liable to be accepted as substantial compliance with section 37 C of the Central Excise Act. It is submitted that the postal article sent by speed post did not return to the department and hence must have been received by the appellant. The learned Dy. Commissioner (A.R.) has also submitted that all the hearing notices were sent by the original authority to the same address to which the order-in-original was also sent. As the hearing notices were received by the assessee, they must have received the order as well. In the circumstance, according to the learned Dy. Commissioner, the decision of the Commissioner(Appeals) cannot be interfered with.
5. We have given careful consideration to the submissions. It is not in dispute that order-in-original was sent to the assessee by speed post whereas the legal requirement was to send it by registered post with acknowledgment due. The purpose of this kind of dispatch by registered post with acknowledgment due under Section 37C ibid is to ensure delivery of the postal article to the addressee and to enable him to acknowledgment its receipt. This purpose cannot be served by a mere speed post without acknowledgment due required under the above provision of law. Thus, we have found substance in the submissions of the learned counsel that dispatch of the order-in-original to the appellant was not in accordance with Section 37C ibid. If that be the case, it is not open to the department to claim to have served the order-in-original on the appellant in accordance with law. This view is supported by the decision cited by the learned counsel. We are not impressed with the reliance placed by the Dy. Commissioner (A.R.) on Milan Podder (supra) which is a decision in relation to Section 282 of the Income-Tax Act. That provision inter alia required a notice/summons/requisition/order/other communication to be sent to the person concerned by post. The question considered by the Hon’ble High Court was whether dispatch by speed post to would suffice the purpose of dispatch by post. This question was answered in the affirmative, but this can hardly come to support the department’s case before us inasmuch as the question which we have already answered in favour of the appellant is whether speed post would serve the purpose of registered post with acknowledgment due. This question has no parallel with the question concerned in the income tax case.
6. Having found a good case for the appellant on the question whether the order-in-original was issued and dispatched in accordance with the relevant provision of law, we have to remand this case to the learned Commissioner (Appeals) with a request to consider the assessee’s appeal filed against the order-in-original to have been filed within time and then to proceed to dispose it of on merits in accordance with law and the principles of natural justice. Accordingly, we set aside the impugned order and allow this appeal by way of remand for the aforesaid purpose. The stay application also stands disposed of.