Mode of Service of Notice/Order as per Section 37C of the Central Excise Act – Courier not Legal?
THE Chief Commissioner of Central Excise, Kolkata Zone made a reference to the Board on 7.10.2010, bringing to its notice the decision of the CESTAT in Nirmal Products vs. Commissioner of CX, Jaipur - 2010-TIOL-1573-CESTAT-DEL. Issuing strictures against the Department, the Hon'ble CESTAT held that the Public authorities can not go beyond modality prescribed by the law as in this case serving of the Order-in-Original was against the expressed provision and so authority conferred upon, in their opinion, was not exercised in accordance with law. The Chief Commissioner suggested to the Board, “Serving any notice/order expeditiously, speed post / courier scores over registered post, which takes more time. Hence, inclusion of the word 'Speed Post' or through 'Courier' (in the event any practical/ unforeseen difficulty is experienced), in the provision of Section 37 C of the Central Excise Act, 1944 may be considered.“
Board has examined the issue and informed the Chief Commissioner:-
++ So far as the proposal for inclusion of Speed Post in Section 37 C is concerned, in terms of section 28 of the Indian Post Office Act, 1898, any postal article that is registered at the post office from which it is posted and the receipt issued in respect of the article so registered in the post office, is to treated as registered post. In the case of the Speed Post the article is registered with the post office from where it is posted on the payment of required fees and the receipt also issued is a form of registered post under the Indian Post Office Act, 1898. Only difference between normal registered post and speed post being the time of delivery taken. Otherwise procedurally speed post appears akin to the registered post and should be covered by the term "registered post" used in the Central Excise Act. However, you may obtain a suitable clarification from the local postal authorities as to whether a speed post is a registered post under the Indian Post Office Act and revert to the Board, if necessary.
++ As regards the proposal to include service through courier in Section 37C in view of the decision of CESTAT in the case of NIRMAL PRODUCTS Vs Commissioner of C. Ex. Jaipur , it is viewed that courier agencies are the private agencies and are not operating under any of the Central Act, Rules or Regulations in respect of the Inland transportations. The service of the documents through courier is also not covered under the General Clauses Act, 1897. Hence, it may not be feasible to include the term "courier" in Section 37 C of the Central Excise Act, till the time relevant amendments are also made in the General Clauses Act, 1897 and Indian Post Office Act, 1898.
++ However, from a perusal of the aforesaid Tribunal order referred by you, it appears that the issue before Tribunal was whether service through courier can be considered as service through registered post. The Tribunal appears to have given its findings on this issue alone. But in terms of Section 37(1) (a) of the Central Excise Act, service can also be done "by tendering" the document. The tendering can be a personal tendering or through and employee or through an agent. Prima facie, a courier can be construed as an "agent". However, this is a legal issue to be explored by the respondent i.e. the Commissioner of C.EX. Jaipur in respect of this individual case.
In DDT 1111 – 15.05.2009, we had mentioned :-
Sending it by courier does not figure in the list at all. Sending a notice by courier is not a mode recognised by law and so a notice served by courier is deemed to have been not served at all.
But why is the Department sending notices by courier? Is it free for them? The Postal Department runs a fairly efficient Speed Post System. Then why should the Government depend on private couriers?
Board's Letter F. No.: Dated: November 2, 2010