M/S Bhilai Builders Pvt. Ltd vs Cce, Raipur

[Arising out of Order-in-Appeal No. 153(ST)/RPR-I/2013 dated 13.9.2013 passed by the Commissioner (Appeals), Central Excise & Customs, Raipur]

For Approval & Signature :

Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. 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 Lordships wish to see the fair copy of the order?

4. Whether order is to be circulated to the Department Authorities?

M/s Bhilai Builders Pvt. Ltd. Appellant

Vs.

CCE, Raipur Respondent

Appearance:

Req. on merits - for the Appellant

Shri B.B. Sharma, D.R. - for the Respondent

Coram : Honble Mr. Justice G. Raghuram, President

Honble Mr. R.K. Singh, Member (Technical)

F. Order No. 51428/2015

Per R.K. Singh :

Appeal has been preferred against the order in appeal dated 13.9.2013 in terms of which the appellants appeal before the Commissioner (Appeals) was dismissed as time-barred having been filed beyond the time period prescribed under Section 85 of the Finance Act, 1994. The Commissioner (Appeals) observed that the primary adjudication order was sent to the appellant on 27.1.2012 under speed post and the same was never received back and thus there was a presumption of service. The appeal was filed 453 days after that which is clearly beyond the statutory limit provided under Section 85 ibid. Thus, observing their appeal was rejected by Commissioner (Appeals).

2. No one appeared for hearing before CESTAT but the appellant wrote a letter that its appeal may be decided on merit. The appellant in its appeal essentially contended that section 37C of the Central Excise Act, 1944 requires the order to be sent by registered post while the order in original was sent by speed post and therefore there cannot be a presumption of service.

3. We have considered the appellants contention. In the case of CCE Vs. Mohan Bottling 2010 (255) E.L.T. 321 (P & H), the Pubjab & Haryana High Court analysing the issue with reference to Section 27 of the General Clauses Act, Section 144 of the Evidence Act and Section 37 of the Central Excise Act, 1944 held that sending order at correct address by registered post under Registered A.D. is sufficient for Department. It is deemed served on assessee on date on which it is tendered/delivered by post/copy thereof is affixed to some conspicuous part of factory or warehouse or other place of business. It is for assessee to rebut presumption of service by cogent evidence that in fact order was never served upon him. Assessees plea that for limitation to appeal, order need to be actually/physically served on them was rejected and view of Larger Bench of Tribunal that despatch of adjudication order by speed post/registered post did not amount to a valid service in absence of proof of actual delivery of speed post was set aside.

4. As regards the contention that the speed post is not registered post and therefore the presumption of services cannot emanate from the fact of having sent the order by speed post, we find that in the case of. Jai Bala Jyoti Steel Vs. CCE  2015 (57) STR 673 (Orissa), the Orissa High Court has held that Speed Post is to be treated be registered post and the amendment to section 37C of Central Excise Act, 1944 with effect from 10-5-2013 was clarificatory and procedural and therefore had retrospective effect.

5. We find that appellants have not been able to advance any argument to rebut the presumption of service of the order. Therefore, we do not find any infirmity in the impugned order in appeal. Consequently the appeal is dismissed.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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