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Judgment
D.A. Mehta, J.—Heard Mr. Dhaval Shah, learned advocate for the petitioners and Mr. Jitendra M. Malkan appearing on behalf of the respondent authorities. RULE returnable today. Mr. Malkan waives service and the matter is taken up for final hearing and disposal at the request of the learned counsel.
The dispute between the parties lies in a very narrow compass - As to whether the order of the Commissioner (Appeals) is served on the petitioner or not? The petitioner vide communication dated 16th September, 2004 has categorically stated that on inquiry with the postal department, the petitioner has been informed that no such delivery has been effected by registered post. This communication has been addressed to the Commissioner (Appeals) and is in context of the earlier communication dated 1st September, 2004 from the Superintendent stating that the Order-in-Appeal dated 24th November, 2003 issued by Commissioner (Appeals) had been dispatched to the petitioner by registered post on 6th December, 2003 vide Entry No. 1296.
In light of the aforesaid fact situation, time was sought for on behalf of the respondents to ascertain the factual position from the record of the department as noted by the Court on 3rd May, 2005. Thereafter, again on 10th May, 2005 further time was prayed for and granted.
Today, when the matter is taken up for hearing, the learned counsel appearing for the respondent authorities has placed reliance on the affidavit dated 22nd June, 2005, sworn by Commissioner (Appeals), Surat-I, Shri V. Padmanabhan. In the affidavit-in-reply the same averments, as made in communication dated 1st September, 2004, have been repeated. Nothing has come on record to rebut the averments, made in writing by the petitioner, on 16th September, 2004 after inquiry with the postal authorities.
In the circumstances, the averments made by the petitioner regarding non-service of the order of Commissioner (Appeals) have remained uncontroverted. Reliance on behalf of the respondents on provisions of Section 37C of the Central Excise Act, 1944 are besides the point inasmuch as the said provision also requires that the order must be served by registered post with acknowledgment due. The respondent authorities have failed to show by tendering any evidence on record that in fact the order has been served as in absence of the acknowledgment receipt in possession of the respondent authorities, the certificate issued by the postal authorities remains undisputed.
The petition is, accordingly, required to be allowed. The respondent authorities are directed to serve a copy of the order of Commissioner (Appeals) bearing OIA No. YPP/805/SRT/2003, dated 24th November, 2003 on or before 2nd July, 2005. The petition is allowed to the aforesaid extent. Rule made absolute. The respondent authorities shall pay the costs quantified at Rs. 1,500/-.
On 3rd May, 2005 when the order was made the petitioner was directed to deposit a sum of Rs. 5,000/- on or before 7th May, 2005 and the petitioner has, accordingly, deposited the same with the Registry of this Court on 6th May, 2005. Considering the fact that the petitioner has succeeded, the Registry is directed to return the said amount to the petitioner by an Account Payee Cheque.