Whether not serving notice on the address specified by the assessee amounts to proper serving of notice and the provisions of Section 37C of the Central Excise Act applicable?

PJ/Case Laws/2012-13/1346

Case:-MINMA ELECTRONICS PVT. LTD. Versus C.C.E. & CUS., BELAPUR

Citation:-2012 (286) E.L.T. 251 (Tn. - Mumbai)

Brief Facts:-The appellant has sent a letter by Speed Post to the Asst. Commissioner of Central Excise, Belapur communicating their advocate's address and their address in USA for future communications. The Department has issued order on 31st March 2009 but appellant has received said order on 12^th March 2010 and filed appeal against said order on 16^th April 2010. The Revenue took a preliminary objection that the appeal is barred by limitation hence is not maintainable on the ground that the impugned order has been passed on 31st March, 2009 and the appeal is filed on 16th April, 2010. As per the appellant, impugned order has not been served on the appellant on the address given by them in their letter, hence the department has failed to make a proper service of the impugned order on the appellant. The appellant filed an appeal alongwith Stay application and early hearing against order passed by C.C.E. & Cus. Belapur.

Appellant’s Contention:-The appellant submits that the appellant has received the impugned order on 12th March 2010 although the order has been passed on 31st March 2009 and they filed the appeal on 16th April 2010 which is within time as the appellant is entitled to file appeal within 90 days of the communication of the order. The appellant, further, submitted that during the course of adjudication the appellant has sent a letter dated 3-5-2007 on 18th May 2007 by Speed Post to the Asst. Commissioner of Central Excise, Belapur communicating their advocate's address and their address in USA for future communications. He also placed on record the postal receipt of the said letter. As the impugned order has not been served on the appellant on the address given by them in their letter dated 3-5- 2007, hence the department has failed to make a proper service of the impugned order on the appellant. Hence, the contention of the learned DR that the appeal is barred by limitation is not tenable as the impugned order has been received by the appellants only on 12-3-2010.

Respondent’s Contention:-. The Respondent submits that the department has not received the letter dated 3-5-2007 sent by the appellant and burden of proof that the letter has been served on the department is on the appellant which they have failed to do so. Hence the argument of the learned Advocate deserves no merit. The further submitted that the appellants cannot take the shelter of provisions of Section 37C of the Central Excise Act as these provisions are only for the Department. Therefore, the appellant cannot take the benefit of mode of communication of Section 37C ibid.

Reasoning of Judgment:-. The Tribunal heard both side and after a careful examination of the submissions made by both the sides and going through the records in detail, The Tribunal finds that the appellant has sent a letter dated 3-5-2007 on 18-5-2007 to the department for communicating their advocate's address and their address in USA by Speed Post and a postal receipt of the same is on record. If the said communication is within the terms of law then the appeal is not barred by limitation as it is an admitted fact that impugned order dated 31-3-2009 has not been served on the addresses given by the appellant in their letter dated 3-5-2007. Now the only issue for consideration is whether the provisions of Section 37C of the Central Excise Act, 1944 are applicable to the appellant or not? Therefore, we have to go into the provisions of Section of 37C of the Act which is reproduced herein as under:-

"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 authorised 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 ware house 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 sub-section (1)”

The Tribunal finds after bare reading of the above Section, and finds that it is clear that the provision is for service of decisions, orders, summons, etc. which means that this section deals with the mode of communication. We are not in agreement with the respondent that there are two parameters for communication under the same Act one for the appellant and another for the department. In the eyes of law the litigants are on equal footing and there cannot be two parameters for rival sides. As the section itself says that service of decisions, orders, summons etc. The letter sent to the appellant is covered under this Act under "etc." We found the appellants have complied the provisions of Section 37C ibid by showing postal receipt of letter dated 3-5-2007. Therefore, we hold that the appellant has been able to prove that they have communicated to the department of their Advocate's address and their address in USA for communication. The department has failed to serve the impugned order on these addresses to the appellants. Therefore, the service effected by the department of the impugned order is defective within the provisions of Section 37C of the Central Excise Act, 1944.In view of the above discussion, we turn down the preliminary objection raised by the learned DR and hold that the appeal filed by the appellant is in time.Registry is directed to list the stay application.

Decision:-Appeal is admitted.

Comment:- The analogy drawn from this case is that section 37C regarding service of decisions, notices etc., is applicable for both the assessee and the department and if order is not served according to the provisions specified, then the benefit of late filing of appeal will be available to the assessee.

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PJ/Case Laws/2012-13/1346

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