Service of Orders - Speed Post still not recognised!!!!
AN assessee filed an appeal against an order of a Commissioner (Appeals), two years after the order was passed. The assessee's ground for the delay was that it was not served with a copy of the order. The CESTAT found that the order was sent by speed post and therefore the requirement of Section 37C was complied with.
Section 37C of the Central Excise Act reads as:-
Section 37C. 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 authorized 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 subsection (1)."
So, Section 37C does not recognize "Speed Post", nor does the Bombay High Court. On appeal by the assesse against the CESTAT order, the Bombay High Court recently held that sending the order by Speed Post was not enough compliance; "As per Section 37C(1)(a) of the Central Excise Act, 1944, it was obligatory on the part of the Revenue, either to tender a copy of the decision to the assessee or to sent it by registered post with acknowledgment due to the assessee or its authorized agent. In the present case, neither of the above have been complied with by the Revenue."
Section 37C was introduced in the statute in 1985. At that time, there was no speed post, which was introduced a little later in 1986 and nobody thought of amending Section 37C to include Speed Post.
In fact very recently, in 2011, a Commissioner of Service Tax suggested to the Board to include “Speed Post” in Section 37C.
The Commissioner submitted,
"Virtually/there is no difference between the two services viz. RPAD and SPAD. In both the cases, the sender is required to fill up the Ack. Due Card with both details of addressor and addressee, and after delivery AD card is returned to the sender by the postal authorities. Many courts are taking decision that despatch of notice/ order by SPAD is not permissible/ correct mode of service, under the law based on an age-old system under the statute. In the circumstances, it is high time to include the SPAD mode of service or orders / notices also in the said provision of law."
The Commissioner also suggested e-mail as a mode of service, but the wise men in the Board do not have much respect for the wisdom or lack of it of Commissioners in the field. (Of course, the opinion is reciprocal).
In 2010, the Chief Commissioner, Kolkata Zone had made a similar reference to the Board and the Board told him that ‘Speed Post' is covered by the term ‘Registered Post'. Please see -07.12.2010. We had also discussed the issue in - 15.05.2009
In 1984, the Supreme Court of India had struck down electronic voting as ‘ballot' meant the ballot paper and not a button on a machine and there was no provision for such pressing the button to cast a vote.