The Delhi Bench of Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has held that the order was sent by speed post and under the amended section 37C of Central Excise Act, there should be proof of delivery also. However there was no proof of delivery since what has been stated by the Assistant Commissioner in his comments is that the speed post which was sent to the appellant containing the order in original did not return to the office.
The bench of Rachna Gupta (Judicial Member) and Hemambika R. Priya (Technical Member) has observed that the post office issues receipt for both – by registered post and by speed post. Hence, both have to be treated as registered posts in view of section 28 of Indian Post Office Act, 1898. Only difference between the two is that charges payable are normally higher for ‘speed post’ for delivery at any early date. Further, insertion of ‘or by speed post with proof of delivery’ after the words ‘sending it by registered post with acknowledgement due’ in section 37C(1)(a) of Central Excise Act, 1944 w.e.f. 10.05.2013 is clarificatory and procedural amendment. It is curative since various courts had held that communication of notices through speed post was in consonance with law.
The issue raised was whether sending of order by speed-post complies with the provision of section 37C(1)(a) of the Central Excise Act i.e. whether proof of dispatch of a process can supplement the proof of service there of?”
The appellant, M/s Bridge & Roof Company (India) Ltd., is registered under Service Tax Department for providing taxable service namely Erection Commissioning and Installation Services and also Transport of Goods by Road Service.
The Order was received by the appellant from the Superintendent on 20-07-2017 and the appeal before the Commissioner (Appeals) was filed on 02/08/2017. Thus the appeal is filed within the prescribed time. It is alleged that Commissioner (Appeals) failed to appreciate that the Assistant Commissioner (Adjudication) informed that the Order under challenge is dispatched on 25-10-2016 and the order is not returned undelivered.
Commissioner (Appeals) has also failed to appreciate that the department has not brought any record evidencing that the Order was dispatched at the proper address of the appellant and was delivered to the appellant.
The appellant contended that the requirement of section 37C (1) of Central Goods and Service Tax Act, 2017, in case of service by speed post is proof of delivery is not brought on record. Hence, rejection of the appeal on the presumption is per se bad in law and is not sustainable.
The department contended that the show cause notice was served upon the appellant on the same address, which was received by them on20.05.2014. The appellant filed the reply to the SCN. Even the adjudicating authority provided personal hearing to the appellant 30.08.2016. It is not possible that the copy of order in original, as was dispatched at the same address of the appellant, was not received by him. Otherwise, also there lies presumption in favor of delivery of the dispatched process, and the receipt thereof. Thus there can be no reasonable explanation for the delay that occurred while filing the appeal before Commissioner (Appeals).
The tribunal noted that no doubt there occurred a delay in filling the appeal before Commissioner (Appeals) but the same was within the condonable powers of the Commissioner (Appeals) but he didn’t call for the explanation from the appellant. The appeal has been dismissed simply holding that there is no request on record seeking condonation of delay in filing the appeal.
The CESTAT held that no opportunity of personal hearing was given to the appellant nor any reasonable time to file the miscellaneous application. The very basic principle of Principles of Natural Justice has been violated by Commissioner (Appeals).
Case Details
Case Title: M/s. Bridge & Roof Co. (India) Ltd. Versus Commissioner of Central GST & Central Excise, Jodhpur
Case No.: Service Tax Appeal No. 50724 of 2019 [DB]
Date: 01.01.2025
Counsel For Appellant: Tarun Chatterjee and Saurav Basu
Counsel For Respondent: Jayakumari
