Custom, Excise & Service Tax Tribunal
Bharat Sanchar Nigam Limited vs Cce, Jaipur-I on 17 April, 2013
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
West Block No. 2, R.K. Puram, New Delhi 110 066.
Date of Hearing : 17.4.2013
No. ST/Misc./881/2011, ST/Stay/3325/2011 and ST/1580/2011
[Arising out of Order-in-Appeal No. 149(DKV)ST/JPR-I/2011 dated 15.4.2011 passed by the Commissioner, Central Excise, Jaipur-I]
For Approval & Signature :
Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, Member (Technical)
1.
Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2.
Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3.
Whether their Whether their Lordships wish to see the fair copy of the order?
4.
Whether order is to be circulated to the Department Authorities?
Bharat Sanchar Nigam Limited Appellant
Vs.
CCE, Jaipur-I Respondent
Appearance:
Shri Sameer Agarwal, Advocate - for the appellant
Shri B.B. Sharma, D.R. - for the respondent
Coram : Honble Mr. Justice G. Raghuram, President
Honble Mr. Sahab Singh, Member (Technical)
F. Order No. 56170/2013 dated 17.4.2013
Per Justice G. Raghuram :
Heard Shri Sameer Agarwal, ld. Advocate for the appellant and Shri B.B. Sharma, ld. DR for the Revenue.
2. Since the appeal itself falls within a narrow compass of facts, we dispose of the appeal at the stage of Misc. application. Against the adjudication order dated 31.3.2011 the appellant/assessee preferred an appeal to the Commissioner (Appeals), Central Excise, Jaipur-I. By the order impugned dated 25.2.2008 the appellate authority vide order dated 31.3.2011 rejected the appeal on the point of limitation.
3. The appellant herein who was the appellant before the Commissioner (Appeals) as well contended before the appellate authority that it became aware of the adjudication order only when it received a notice for recovery from the Range Superintendent, Kota on 24.11.2008; and that on 12.1.2009, 29.9.2009, 5.10.2009, 25.11.2009, 30.11.2009, 3.12.2009, 25.1.2010 and 23.2.2010. The appellant had addressed letters to the Supdt. as well as the Additional Commissioner of Central Excise requesting furnishing of a copy of the adjudication order. No copy was however furnished. Thereafter, appellant applied for a certified true copy of the adjudication order on 3.3.2010 and the same was furnished vide letter dated 23.3.2010 and the appellant was informed that the said order was also posted at the office premises of the appellant on 25.2.2008. The appellant contended that since the adjudication order was received only on 27.3.2010 along with the letter dated 23.3.2010, the appeal was preferred and the delay if any be condoned.
4. The appellate authority observed that the adjudication order dated 25.2.2008 was dispatched to the appellant through registered post on 20.5.2008 and that the adjudication order is deemed to have been served on the assessee. A judgement of the Madras High Court reported in 2000 (126) ELT 65 (Mad.) was referred to for the said purpose.
5. Section 37(C)(2) of the Central Excise 1944 clearly enacts that every decision or order passed or any summons or notice under this Act or the rules made therein, 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) and (2). Section 37 comprises two limbs; clause (a) is alone relevant for our purposes and this provision enjoins that any decision or order shall be served by tendering such decision or order or notice or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent.
6. On an inter active application of the provisions of sub-section (1) and (2) of Section 37(C) the conclusion is compelling that where Revenue seeks to serve an adjudication order by sending it through by registered post, proof of service/proof of delivery of the communication on the assessee is an integral component of facts relevant to an inference as to the date of communication. The ld. Commissioner (Appeals) has inferred, from the fact of the adjudication order having been sent by registered post that there was a delivery of the registered post to the assessee. This inference suffers from a factual vacuum viz. proof of delivery.
6. On the aforesaid analysis the appellate order rejecting the appeal on the ground of bar of limitation is unsustainable. Ld. DR would however assert that normally an order of adjudication is also pasted on the factory premises and affixed on the notice board of the adjudicating authority. This is not the basis of the appellate decision, rejecting the appeal on the ground of delay.
8. In the above circumstances, we remand the matter to the Commissioner (Appeals), Jaipur for consideration of the appellants appeal on merits including on the aspect whether service of the adjudication order on the appellant in any of the modes spelt out in Section 37(C) of Central Excise Act, was effected. If any, material as to such alternative mode of service is available or becomes available to the Commissioner (Appeals), no such information or material shall taken into consideration by the Commissioner (Appeals) in disposing of the appeal without furnishing a copy of the material to the assessee, in compliance with the due process of law. This appeal is allowed as above, but in the circumstances without costs.
(Justice G. Raghuram) President (Sahab Singh) Member (Technical) RM 1