Shri Kanhaiya Lal Samaria vs C.C.E.&S.T., Jaipur-I

1. Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2. Whether it would be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3. Whether Lordships wish to see the fair copy of the order? Seen 4. Whether order is to be circulated to the Department Authorities? Yes

Application No.ST/STAY/53420/2014-ST[SM]

Appeal No.ST/53053/2014-ST[SM]

[Arising out of Order-in-Appeal No.05(VC)ST/JPR-I/2014, dated 12.04.2014 passed by the C.C.E.&S.T.(Appeals), Jaipur-I]

Shri Kanhaiya Lal Samaria Appellant

Vs.

C.C.E.&S.T., Jaipur-I Respondent

Appearance

Shri Vijai Kumar, Advocate - for the appellant

Shri V.P. Batra, DR - for the respondent

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

Final Order No.50795/2015, dated 04.03.2015

Per Mr. R.K. Singh :

The Stay application along with appeal has been filed against Order-in-Appeal No.05(VC)ST/JPR-I/2014, dated 12.04.2014, which rejected the appellants appeal filed against Order-in-Original dated 29.02.2008/03.03/2008 on the ground that it was filed beyond the condonable period. The Commissioner (Appeals) cited the judgement of Punjab & Haryana High Court in the case of CCE, Ludhiana Vs. Mohan Bottling Co. Ltd. [2010 (255) ELT 321 (P&H)], which held that there was presumption of service once the order was dispatched under registered AD and it is for the assessee to rebut the presumption of service by cogent evidence that in fact the order was never served on them and in the present case the appellant had failed to do so. The Commissioner (Appeals) further observed that the Order-in-Original is bearing the date of dispatch 03.03.2008, while the appeal was filed before him on 27.08.2012, and the appellant has mentioned that the date of communication of Order-in-Original was 07.07.2012. It is evident from Commissioner (Appeals) order that the registered AD was sent to the postal address of the appellant and that the postal authorities returned the said registered AD with the remark that the appellant refused to take. Ld. Departmental Representative submits that in view of the judgement in the case of Mohan Bottling (supra), it is presumed that the order was served. However, as it is stated in the said judgement itself, it is a rebuttable presumption In the present case it is evident that the order was not served as the impugned order itself notes that the registered AD was returned by the postal authorities unserved. A mere remark scribbled on the envelope, the appellant has refused to take, cannot be taken as gospel truth when the appellant has pleaded that the postal authorities never contacted him. In the case of Triveni Glass Ltd. Vs. CCE, Allahabad [2008 (224) ELT 403 (Tri.  Del.)], the Tribunal held that receipt of Order-in-Original/notice summons is a must for calculation of period of limitation. In the case of JC Rolling Mill Pvt. Ltd. Vs. CCE [2015 (316) ELT 593 (All.)], the Allahabad High Court held as under:-

4. In the present case, as the order of the Tribunal itself would indicate, the notice which was remitted to the assessee was returned undelivered with remarks of postal authority as Not Known. From this, the Tribunal inferred that the appellant has changed its address without an intimation to the Tribunal and consequently the appellant appeared to be not interested in pursuing the appeal. As a matter of fact, the order of the Tribunal, as was urged before the Court, was served on the same address. The provisions of Section 37C(1) of the Act were clearly not followed and we find merit in the contention advanced by learned counsel for the appellant that there was no valid service upon the appellant.

3. In the light of the foregoing, I dispense with the requirement of pre-deposit and allow the appeal by way of remand with the direction to the Commissioner (Appeals) to hear the appeal on merit.

(R.K. Singh)

Member (Technical)

SSK

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