Whether sending of adjudication order by speed post is valid?

PJ/Case Law/2013-14/2102

Case:- SUPER CABLE NETWORK Vs COMMISSIONER OF CENTRAL EXCISE, PUNE-III

Citation:- 2013 (32) S.T.R. 446 (Tri. - Mumbai)

Brief facts:- Applicant filed the application for waiver of pre-deposit of Service Tax of Rs. 8,33,862/-, interest and penalty. The demand was confirmed on the ground that the applicant provided cable operators service. The adjudicating authority confirmed the demand and imposed penalties. The applicant filed appeal along with the application for waiver of dues before the Commissioner (Appeals) as they were of the view that the provisions of Section 37C of the Central Excise Act, 1944 sending of adjudication order by speed post was not a valid service. On the other hand the Commissioner (Appeals) dismissed the appeal as time-barred.

Appellant’s contentions:- The contention of the applicant was that the adjudication order was passed on 15-10-2009 and the same was issued on 23-10-2009 but the applicant had not received the same. When the applicant received a communication regarding non-deposit of the amount in question, the applicant approached the Revenue and obtained a copy of the adjudication order on 22-4-2011 and the appeal was filed on 13-7-2011 within the normal period of limitation. Hence the impugned order passed by the Commissioner (Appeals) dismissing the appeal was not sustainable. The applicant relied on the decision of the Hon’ble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. v. Union of India and Others reported in 2012-TIOL-395-HC-MUM-CX = 2012 (26) S.T.R. 299 (Bom.) = 2012 (279) E.L.T. 353 (Bom.) to submit that as per the provisions of Section 37C of the Central Excise Act, 1944 sending of adjudication order by speed post was not a valid service.

Respondent’s contentions:- The Revenue submitted that the adjudication order was sent to the appellant by speed post but was received back undelivered.

Reasoning of judgment:- The Bench found that the Commissioner (Appeals) dismissed the appeal as time-barred. The evidence on record shows that the adjudication order was sent through speed post twice by the Revenue and the same had been received back undelivered. There was no evidence on record to show that the adjudication order was affixed as per the provisions of Section 37C of the Central Excise Act, 1944. Further, they found that the Hon’ble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. cited supra held that sending of adjudication order by speed post was not a valid service as per Section 37C of the Central Excise Act, 1944 as the order was to be sent by registered post with acknowledgement due. In these circumstances, they found merit in the contention of the appellant that the impugned order dismissing the appeal as time-barred was not sustainable. The impugned order was therefore set aside after waiving pre-deposit of the dues and the matter was remanded to the Commissioner (Appeals) to decide the application for waiver of dues afresh after affording an opportunity of hearing to the appellant and thereafter to decide the appeal on merits in accordance with law.

Decision:- The appeal was disposed of by way of remand.

Comment:- The analogy drawn from the case is that adjudication order by speed post was not a valid service as per Section 37C of the Central Excise Act, 1944 as the order was to be sent by registered post with acknowledgement due. Thus, dismissing the appeal as time-barred is not sustainable in such cases.

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PJ/Case Law/2013-14/2102

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