M/s Jenika Security Network vs CCE, Jaipur-I

Satisfactory cause is shown for the delay of five days in preferring the appeal. Hence the delay is condoned. This COD application is ordered.

This appeal along with stay application has been filed by the appellants against Order-in-Appeal No. 72(VC)/ST/JPR-I/2013 dated 28.6.2013 vide

which the Commissioner (Appeals) rejected their appeal against Order-in-Original No. 104/ST/DEM/06 dated 12.10.2006 on the ground that the

appeal was filed beyond even the condonable period prescribed under Section 85 of the Finance Act, 1994. The appellants have contended that they

never received the original adjudication order dated 12/13.10.2006 and came to know about it on receipt of the recovery notice when they obtained a

copy thereof on 5.7.2012 and that Commissioner (Appeals) has wrongly interpreted the provisions of Section 37C of Central Excise Act, 1944 with

regard to service of decisions/orders etc. and that the department has acted on presumption that the order was served on them.

We have considered the matter. It is seen that the original adjudication order was despatched by registered AD vide the C.No.

5(SEA)15/101/ST/2005/4331 dated 13.10.2006. Having been so despatched, there is a legal presumption about the delivery thereof in terms of the

provisions of Section 37C(2) of Central Excise Act, 1944 read with Section 27 of the General Clauses Act, 1987. We find that the appellants have not

been able to rebut the said presumption. Indeed Delhi High Court in the case of Neha Cosmetics Vs. CCE - 2007 (208) ELT 494 (Del. )in para 14

held as under :

14.We are unable to agree with the submissions of the respondent. The wording of Section 37C does not exclude the orders passed by the

CESTAT in appeal. The word ‘service of decisions’ occurring in the title of the Section and the word ‘decisions’ occurring

throughout under Section 35C is, in our view, intended to govern the decisions handed down by the CESTAT as well. It is true that Rule 35D

deals with the procedure to be followed by CESTAT, and the Rules of procedure have also been framed separately. However, Rule 35 of

those Rules are only supplementary to the statutory provisions. The Rules cannot supplant the statutory requirement under Section 37C

which requires that the decisions passed under the Act, which in our view includes those passed by the CESTAT, ‘shall be served’ on

the parties in the manner indicated in that provision. Under Section 37C(2) of the Act, which is similar to Section 27 of the General Clauses

Act, 1897 service of the decision is ‘deemed’ on the date that such decision is ‘tendered or delivered by post’. This implies that

the initial burden of proof of tender or delivery of such decision by post as required under sub-section (2) of Section 37C read with Section

27 of the General Clauses Act, 1897 is on the authority despatching such notice. The sender will have to show that such notice was in fact

sent by ‘Registered Post’ to the addressee. It is only then that deeming fiction spelt out in sub-section (2) of Section 37C read with

Section 27 of the General Clauses Act, 1897 would stand attracted. The burden thereafter would be on the addressee to show that such

notice was not in fact served.

The judgement of Supreme Court in the case of N. Balakrishnan Vs. M. Krishnamurthy - 2008 (228) ELT 162 (SC )referred to by the appellant is

completely out of context because in that case the issue involved was filing of appeal to set aside a decree.

In the light of the foregoing, the Commissioner (Appeals) order rejecting the appellants’ appeal suffers from no appealable infirmity as there

was a delay of 1984 days in filing appeal which is way beyond even the condonable period under Section 85 of the Finance Act, 1994.

In view of the above, stay petition and appeal are dismissed.