M/S Sanya Communication vs Cce, Jaipur

(Arising out of Order-in-Appeal No. 164(VC)ST/JPR-I/2013 dated 24.10.2013 passed by the Commissioner (Appeals), Central Excise, Jaipur-I)

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 Sanya Communication Appellant

Vs.

CCE, Jaipur Respondent

Appearance:

Shri Bipin Garg, Advocate - 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.51946/2015

Per R.K. Singh :

Stay application along with appeal has been filed against order-in-appeal dated 24.10.2013 in terms of which the appellants appeal before Commissioner (Appeals) was dismissed as time-barred on account of having been filed beyond even the condonable period of delay.

3. The appellant contended before Commissioner (Appeals) that the order in original dated 10.3.2011 was received on 23.3.2012 and appeal was filed on 15.6.2012 and hence the same was filed within the stipulated period.

4. We find that the order-in-original dated 10.3.2011 was sent to the appellant by registered post A.D. on 10.3.2011. It is also seen that the order was sent at the correct postal address of the appellant. In terms of Section 37C(2) of Central Excise Act, 1944 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). Section 37C of the Central Excise Act, 1944 has been made applicable in relation to Service Tax by virtue of Section 83 of Finance Act, 1994.

Thus the order-in-original is deemed to have been served on the appellant by virtue of having been sent by registered post A.D. on 10.3.2011. The appellant has not produced any evidence to rebut such presumption of deemed service. The Honble Punjab & Haryana High Court in the case of CCE, Ludhiana Vs. Mohan Bottling Co. (P) Ltd.  2010 (255) ELT 321 (P&H) has categorically held that we have also carefully examined Section 37C of the 1944 Act, Section 27 of the General Clauses Act and Section 144 of the Indian Evidence Act. Having examined, we are of the view that it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. The Honble High Court further observed that it is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. As stated earlier, the appellant has not submitted any evidence, leave alone cogent evidence, to rebut the presumption of deemed service. In the circumstances, the appeal filed before the Commissioner (Appeals) was clearly beyond even the statutorily condonable period prescribed in Section 85 of the Finance Act, 1994 and therefore the Commissioner (Appeals) was right to conclude that he had no option but to reject the appeal as time barred without going into the merits of the case.

6. In the light of the foregoing, we find no infirmity in the impugned order in appeal. The appeal itself is therefore rejected. The stay petition too thus stands disposed of.

(Justice G. Raghuram)

President

(R.K. Singh)

Member (Technical)

RM

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