Whether sending order by speed post sufficient compliance?

PJ/CASE LAW/2014-15/2511

Case:- MINT PORT PVT LTD Vs COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX, MEERUT-II

Citation:- 2015-TIOL-214-CESTAT-DEL

Brief facts:- The application was for condoning the delay of 387 days in filing of the present appeal. The appellant's contention was that as the impugned order dated 30.8.2011 was never received by them and it was only when the Revenue approached them for recovery, they procured the order from the Department on 25.9.2012 and filed the present appeal in December, 2012. When the matter came up on last occasion, Revenue was given an opportunity to place on record evidence showing that the impugned order was dispatched in accordance with the provisions of Section 37C of the Central Excise Act, 1944 and was received by the appellant in due course. Revenue showed the despatch register before the commissioner and showed that the impugned order was sent by speed post and not registered A.D. They also sent the said impugned order to the Manager of the appellant company and the receipt or non-receipt of the same was not disputed.

Appellant’s contention:-The ld. Advocate for the appellant to this submitted the receipt of the order by the Manager of the appellant company was not being disputed, non-receipt of the same by the Manager cannot be treated as receipt of the order by the appellant company. He further submitted that even the receipt of the order by the Manager is beyond doubt and was not proved by any evidence inasmuch as it required that the Manager having not disputed the receipt of the order was presumed to have been received the same. Ld. Advocate clarified that Commissioner has set aside the penalties against the Manager and as such the Manager was not required to file any appeal, in which case, the date of receipt of the order by the Manager became irrelevant.

Respondent’s contention:-The ld. A.R. for Revenue on the other hand placed the despatch register before the commissioner showing that the impugned order was sent by speed post. However, they fairly agreed that as per the requirement of the provision of Section 37C (1), orders were required to be sent by registered A.D and in the present case, the impugned order of Commissioner was not sent by registered A.D. They also fairly conceded that they did not have any proof of any evidence on record to show that speed post sent by them was actually received by the appellant. However, they submitted that the said impugned order was also sent to the Manager of the appellant company and he was not disputing the receipt or non-receipt of the same and as such was presumed to have been received the same. If that be so, there was reasonable presumption that appellant must have received the impugned order. As such he prayed that inasmuch as there was huge delay, the appeal could not be maintained.

Reasoning of judgment:- After considering submissions made by both the sides, it was found that the Hon'ble High Court in the case of Amidev Agro Care Pvt. Ltd. vs. Union of India reported in 2012 (26) STR 299 (Bom.) = 2012-TIOL-395-HC-MUM-CXhad held that sending of order by speed post was not sufficient compliance to the provisions of Section 37 C(1)(a) of CEA, 1944 and the order was required to be sent by registered A.D. post. Admittedly, in the present case, the order was sent by Revenue by speed post and there was no conclusive evidence on record to show that the same stands received by the assessee. In such arena of dispute on receipt of impugned order, the ratio laid down by the Hon'ble Bombay High Court would apply. As such, they accepted the appellant's contention that he came to know about passing of the order only when the Revenue approached them for recovery under the cover of their letter dated 28.3.2012. Thereafter, the appellant immediately procured the order and filed the appeal within time. Taking the overall facts and circumstances of the case, they were of the view that there was no mala fide on the part of the assessee, not to file appeal within time. They accordingly condoned the delay. COD application is disposed of.

Comment:- The gist of this case is that thesending of order by speed post is not sufficient compliance to the provisions of Section 37 C(1)(a) of CEA, 1944 and the order was required to be sent by registered A.D. post so that there can be a conclusive evidence on record to show that the same was received by the assessee. Moreover, as there was no malafide on the part of the assessee as regards non filing of the appeal within the stipulated time, the delay in filing the appeal was condoned.

Prepared by:- Prayushi Jain

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PJ/CASE LAW/2014-15/2511

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