Ram Pyare Yadav vs Union of India

@DELETEUPPERDATA

Sudhir Agarwal, J.—Heard Sri Aloke Kumar, learned counsel for the petitioner and Sri B.K.S. Raghuvanshi, learned counsel for the respondents. With the consent of learned counsel for the parties, I proceed to decide the matter finally at this stage under the Rules of the Court. The petitioner''s appeal preferred under Section 35 of Central Excise Act, 1944 (hereinafter referred to as "Act, 1944") has been rejected by Commissioner (Appeals) Custom, Central Excise & Service Tax, Allahabad [hereinafter referred to as "Commissioner (Appeals)"] being barred by limitation, inasmuch as order, appealed is dated 21-1-2011 while appeal was preferred in 2013.

The stand taken by petitioner is that a copy of order dated 21-1-2011 passed by Assistant Commissioner, Central Excise, Division Varanasi was never delivered or served upon him in the manner prescribed in Section 37C(1) of Act, 1944. It is only when he subsequently came to know about such an order, he applied and obtained certified copy thereof. Appellate Authority, however, has taken view that order-in-original, was issued and dispatched on 21-1-2011 and appeal having been filed on 28-5-2013, is barred by limitation.

In my view, Appellate Authority has not looked into relevant question as to on which date order, appealed against, was tendered or delivered to the petitioner in order to attract the provision of "deeming service" upon petitioner under Section 37C(2) of Act, 1944.

Section 37C of Act, 1944 reads as under:

"Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,--

(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, [or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)] to the person for whom it is intended or his authorised agent, if any;

(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

(2) 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 1[or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1)."

In the present case, it is not disputed that order dated 21-1-2011 was dispatched to the petitioner by registered post. Whether acknowledgement due was appended to the registered post or not, is not clear. Be that as it may, in order to attract deeming provision regarding service under sub-section (2) of Section 37C of Act, 1944, date of tendering or delivery of such decision/order sent by post has to be ascertained since it is only that date on which delivery of order sent by post shall deemed to be the date of service. In the present case no such date has been ascertained by Appellate Authority and it has simply presumed that since order was sent by registered post, it must have been served upon petitioner and appeal filed in 2013, is thus barred by limitation.

It has not mentioned as to on which date order dated 21-1-2011 dispatched to the petitioner by registered post, was actually tendered or delivered by Postal Department, in order to attract "deeming service" under sub-section (2) of Section 37C of Act, 1944 in order to examine whether appeal preferred by petitioner was barred by limitation or not. The Commissioner (Appeals), therefore, has not examined the matter in correct perspective. The appellate order, therefore, cannot sustain.

The writ petition is partly allowed. The order passed by Commissioner (Appeals) dated 16-7-2013 is, therefore, set aside and the matter is remanded to Commissioner (Appeals) to consider petitioner''s appeal, afresh, in accordance with law, to find out when order dated 21-1-2011 was actually tendered or delivered to petitioner so as to determine date of service and thereafter to examine whether appeal is well in time or not. The petitioner shall also be entitled to cost, which I quantify to Rs. 2,000/-.