Case Law Details
Shri Surya Prakash Gaur Vs Commissioner, Central Excise (CESTAT Delhi)
Service of order by Speed Post cannot be deemed to be served in absence of proof of delivery: Section 37C of Central Excise Act-1944
Service of order by Speed Post cannot be deemed to be served in absence of proof of delivery – Section 37C of Central Excise Act-1944
Introduction: In the case of Shri Surya Prakash Gaur vs. Commissioner, Central Excise (CESTAT Delhi), a significant issue arose regarding the service of an order by Speed Post and its impact on the appeal’s timeliness. The Commissioner (Appeals) had rejected the appellant’s appeal, claiming that the order had been presumed delivered, making the appeal time-barred. The appellant argued that the order was not received on time due to non-receipt, leading to a delay of more than two years in filing the appeal.
This article delves into the details of the case, the analysis of the legal aspects involved, and the final decision rendered by CESTAT Delhi.
Detailed Analysis: The case revolved around the timely filing of an appeal. Under section 85(3A) of the Finance Act, 1994, an appeal must be presented within two months from the date of receipt of the decision, with a provision for an additional one-month extension if sufficient cause is demonstrated.
The Commissioner (Appeals) considered the appellant’s appeal, noting that it was filed more than two years after the order’s presumed date of delivery, effectively rendering it time-barred. However, the Assistant Commissioner provided comments stating that the order was dispatched via Speed Post, and it was not returned undelivered.
The Commissioner (Appeals) cited an unamended section 37C of the Central Excise Act, which indicated that the order had been sent by registered post. However, this section had been amended in 2013.
The amended section 37C required proof of delivery when an order was served, whether by registered post, Speed Post, or other methods. In this case, there was no proof of delivery, as confirmed by the Assistant Commissioner’s comments.
The appellant contended that they had received the order on a different date than presumed, namely on 01.09.2018. According to their claim, the appeal was filed within two months of the actual receipt, upon contact with the department after receiving a recovery order dated 24.09.2020 from the State Bank of India.
CESTAT Delhi ultimately set aside the Commissioner (Appeals)’s decision, emphasizing that the order was dispatched via Speed Post and that the absence of proof of delivery was a crucial factor. The appeal was allowed, giving the Commissioner (Appeals) the mandate to consider the appeal on its merits.
Conclusion: The Shri Surya Prakash Gaur vs. Commissioner, Central Excise (CESTAT Delhi) case highlights the importance of proper service of orders, especially when it comes to the timely filing of appeals. The case underscores the significance of proof of delivery, as per the amended section 37C of the Central Excise Act. It also reinforces the principle that an order served by Speed Post cannot be deemed delivered in the absence of such evidence. This case serves as a valuable precedent for individuals and entities dealing with service tax matters and the appeal process.
FULL TEXT OF THE CESTAT DELHI ORDER
The order dated 25.2.2021 passed by the Commissioner (Appeals) has been assailed in this appeal. The Commissioner (Appeals) has dismissed the appeal solely for the reason that it was filed beyond the period prescribed in section 85(3A) of the Finance Act, 19941.
2. Under section 85(3A) of the Finance Act, an appeal has to be presented within two months from the date of receipt of the decision, but the Commissioner (Appeals), if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.
3. In the present case, the Commissioner (Appeals) has noted the following facts with regard to the presentation of the appeal:
|
Sr. No. |
Order in Original No. and date | Date of dispatch of OIO by the adjudicating authority | OIO received as claimed by the appellant |
Date on which appeal was required to be filed | Date of filing appeal |
Months/d ays delayed after stipulated time |
| 01 | 16/2018- CGST- B(Dem-ST) dated 02.07.2018 | 09.07.2018 | 06.10.2020 | 01.09.2018 | 02.11.2020 | 2 year, 2 month
and 1 day |
4. The Commissioner (Appeals) noted that the Assistant Commissioner, on information sought from him, made the following comments:
“In this context it is submitted that as per records available in this office the said OIO No. 16/2018-CGST-B(Dem-ST)-AC dated 02.07.2018 passed by the AC, CGST Division-B, Udaipur was dispatched from this office on 09.07.2018 vide dispatch No. 1591 and delivered to the assessee through Indian Postal Department vide speed post No. ER627780920IN and was not returned undelivered to this office.”
5. After having noticed the aforesaid comments sent by the Assistant Commissioner, the Commissioner (Appeals) refers to section 37C of the Central Excise Act, 1944 but has quoted the unamended section 37C. This section was amended on 10.05.2013.
6. The relevant portion of the unamended section 37C of Central Excise Act is reproduced below:
“ In this context it is submitted as per records available in this office the said OIO No. 16/2018-CGST-B(Dem-ST)-AC dated 02.07.2018 passed by the AC, CGST Division-B, Udaipur was dispatched from this office on 09.07.2018 vide dispatch No. 1591 and delivered to the assessee through Indian Postal Department vide speed post No. ER627780920IN and was not returned undelivered to this office”.
7. The amended section 37C of the Central Excise Act which has been made applicable to service tax matter by virtue of section 83 of the Finance Act, is reproduced below:
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 acknowledgement due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, to the person for whom it is intended or his authorized agent, if any;
8. The Commissioner (Appeals), even after having noticed the comments of the Assistant Commissioner that the order was despatched on 09.07.2018 by speed post, holds in the impugned order that the order was sent by registered post and so it shall be deemed to have been served.
9. In the first instance, the order was not dispatched by registered post. The order was sent by speed post and under the amended section 37C, there should be proof of delivery also. In the present case, admittedly, there is no proof of delivery since what has been stated by the Assistant Commissioner in his comments is that the speed post that was sent to the appellant did not return to the office.
10. In this view of the matter, Shri Anand Bhattacharya, learned counsel appearing for the appellant is justified in asserting that as the order was actually received by the appellant on 01.09.2018 and the period of limitation would start to run from the said date.
11. This is what was required to be examined by the Commissioner (Appeals), but the Commissioner (Appeals) has held that the order that was sent to the appellant by registered post (though actually it was sent by speed post) by the Commissioner (Appeals)) shall be deemed to have been served.
12. In the present case, the appellant has claimed that the order was received from 06.10.2020 when the appellant contacted to the department after the appellant received a recovery order dated 24.09.2020 from the State Bank of India. The appeal was therefore filed within a period of two months from the date of receipt of the decision.
13. The impugned order dated 25.02.2021 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside. The Commissioner (Appeals) shall now decide the appeal on merits.
14. The appeal is, accordingly, allowed.
(Order dictated in the open court)
Notes
1 the Finance Act
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