Central Excise - Service of Communication on Department by appellant – Section 37C ;applicable - CESTAT
SECTION 37C of the Central Excise Act reads as,
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 acknowledgment due, 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 or a copy thereof is affixed in the manner provided in sub-section (1).
In a case before the CESTAT, the appellant sent a letter by speed post on 18 th May 2007 to the Assistant Commissioner communicating their advocate's address and their address in USA for future communications. But the Department did not serve its adjudication order on the address given by them. The appellant claimed that it received the order dated 31 st March 2009 on 12th march 2010 and they filed the appeal on 16 th April 2010.
The question is whether the appeal was filed within the period of limitation.
The DR argued that the appeal is barred by limitation; hence is not maintainable on the ground that the impugned order has been passed on 31st March, 2009 and the appeal is filed on 16th April, 2010. He contended that the department has not received the letter dated 3.5.2007 sent by the appellant and burden of proof that the letter has been served on the department is on the appellant which they have failed to do so. He further submitted that the appellants cannot take the shelter of provisions of Section 37(C) of the Central Excise Act as these provisions are only for the Department. Therefore, the appellant cannot take the benefit of mode of communication of Section 37(C) ibid.
Tribunal was not impressed and observed, “it is clear that the provision is for service of decisions, orders, summons, etc. which means that this section deals with the mode of communication. We are not in agreement with the learned DR that there are two parameters for communication under the same Act one for the appellant and another for the department. In the eyes of law the litigants are on equal footing and there cannot be two parameters for rival sides. As the section itself says that service of decisions, orders, summons etc. The letter sent to the appellant is covered under this Act under " etc ". We found the appellants have compiled the provisions of Section 37(C) ibid by showing postal receipt of letter dated 3.5.2007. Therefore, we hold that the appellant has been able to prove that they have communicated to the department of their Advocate's address and their address in USA for communication. The department has failed to serve the impugned order on these addresses to the appellants. Therefore, the service effected by the department of the impugned order is defective within the provisions of Section 37(C) of the Central Excise Act, 1944.”
Many departmental officers feel that the CESTAT decision is beyond the Act. They feel that Section 37C applies only to decisions, orders, summons etc., issued under the ACT . A letter from the assessee communicating the address is not an order or decision under the Act. Further, the ‘etc.' is there in the marginal heading of the sub-section, which is not really the law. What is important is what is stated in the section and not in the marginal heading. [Please see DDT 1382 - Heads or Tails – Which is More Legal – The Heading of a Section or its Contents?]
This seems to be correct, but how does an appellant staying in USA communicate his address to the Department? Is he expected to fly down and submit his address to the Assistant Commissioner?
We bring you today this landmark decision delivered on 15.03.2011.