Rus Marketing And Creative v. The Commissioner Of Service

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 11.12.2017

CORAM:

THE HON'BLE MR.JUSTICE S.MANIKUMAR AND THE HON'BLE MR.JUSTICE R.PONGIAPPAN CMA No.3141 of 2017 and CMP Nos.19383 & 19384 of 2017 M/s.RU'S MARKETING AND CREATIVE UNIT, Rep. by its partner, Levnisia D'Souza ... Appellant vs.

The Commissioner of Service Tax, Office of the Commissioner of Service Tax, 6/7, ATD Street, Race Course Road, Coimbatore - 641 018 ... Respondent Civil Miscellaneous Appeal filed under Section 35-G of the Central Excise Act against the final order in No.40492 of 2017 dated 09.03.2017, passed by the Customs, Excise, and Service Tax Appellate Tribunal, Chennai in ST/COD/40027/2017 & ST/40091/2017 for the dispute period of May, 2005 received on 29/3/2017.

For Appellant : Mr.C.Manishankhar, Sr. Counsel.

for Mr.S.Arun Prasad For Respondents :Mr.A.P.Srinivas, SSC

JUDGMENT

(Order of the Court was delivered by S.MANIKUMAR, J) Material on record discloses that an order-in-original, has been passed on 15.11.2011, confirming (i) the demand of Service Tax of Rs.24,51,435/- (Rupees twenty four lakhs fifty one thousand four hundred and thirty five only) from M/s.RU's Marketing and Creative Unit, Coimbatore - 8, under Section 73

(2) of the Finance Act, 1994 read with proviso to Section 73 (1); (ii) the demand for appropriate interest as applicable form them on the above demand under Section 75 and (iii) imposing a penalty of Rs.24,51,435/- (Rupees twenty four lakhs fifty one thousand four hundred and thirty five only) on M/s.RU's Marketing and Creative Unit, Coimbatore - 8, under Section 78 of the Finance Act, 1994

2. Being aggrieved, the assessee has filed an appeal No.33 of 2012, before the Commissioner of Customs, Central Excise & Service Tax (Appeals), Coimbatore. Adverting to the

rival submissions, Commissioner of appeals, vide order dated 08.05.2013, has confirmed the order in original. Thereafter, the assessee/writ petitioner has filed an appeal before CESTAT, Madras, with an application to condone the delay under Section 5 of the Limitation Act, 1963 r/w Section 86(5) of the Finance Act, 1994. In the condonation application, the assessee has contended that he has not received the certified copy of the order-in-appeal, passed by the learned Commissioner (Appeals) in No.CMB-CEX-000-APP-183-13 dated 08.05.2013, by post or direct hand delivery. Photocopy of the order-in-appeal alone has been served on the partner of the assessee firm, Levinisia D'Souza on 22.09.2016, at Mumbai, by the officer of Sales Tax Department, Mumbai-400 001, by hand delivery and acknowledgment taken. The assessee has sent a letter dated 19.

12.2016 through speed post, to the learned Commissioner (Appeals) Coimbatore, intimating the fact that the assessee has not received the certified copy of the orderin-appeal, and requested to send a certified copy of the same. Thus, the assessee has contended that they came to know about the disposal of the appeal only on 22.09.2016, when the partner of the assessee was served with a photo copy at Mumbai, and not the certified copy.

3. In the condonation petition, assessee/appellant has further contended that in response to the letter dated 19.12.2016, he had received a reply dated 22.12.2016, from the office of the Commissioner of Customs (appeals) Coimbatore and the same is extracted hereunder:

"In this connection it is informed that the above cited order passed by the Commissioner (Appeals), Coimbatore was communicated to you following the procedure laid down under Section 37C(a) of the Central Excise Act, 1944, made applicable to Service Tax as per Section 83 of the Finance Act, 1944 by speed-post with acknowledgment due to the address mentioned in the Appeal (ST-4) papers. However, the same was returned undelivered by the postal authorities. Copy of the envelope containing the remarks of the postal authorities is enclosed."

4. Thus, on the basis of the contents of the letter dated 22.12.2016, before CESTAT, Madras, the assessee/appellant has contended that there was no service of the order and that speed post sent was returned.

5. It is the further contention of the assesse/appellant, that in response to the letter dated 22.12.2016, the appellant/assessee has sent a letter to the Commissioner (Appeals), Coimbatore, vide letter dated 28.12.2016, intimating that their authorised representative had not received the order-in-appeal and therefore, requested the Commissioner (Appeals) to send a copy of the acknowledgment, for having delivered the speed post to M/s.Rajesh Kukreja &

Associates, the authorised representative of the assessee. In the condonation application filed before CESTAT, Madras, the assessee/appellant has also enclosed a copy of the letter dated 29.12.2016 sent by M/s.Rajesh Kukreja & Associates, wherein, they have stated that the order-in-appeal, was not received by them.

6. M/s.Rajesh Kukreja & Associates, have also executed an affidavit dated 29.12.2016 to that effect. Contents of the affidavit of their authorised representative, are extracted hereunder " 2. It state that M/s.Rajesh Kukreja & Associates, have not received the Order-In-Appeal passed by the Hon'ble Commissioner (Appeals) in the case of M/s.RU'S Marketing and Creative Unit in the above referred appeal".

"4. I state that the letter dated 04.06.2013 sent by Office of the Commissioner of Customs, Central Excise & Service Tax (Appeals) along with Order-InAppeal in the case of M/s.RU'S Marketing and Creative Unit has not been received by M/s.Rajesh Kukreja & Associates"

7. Thus, on the basis of the above averments and documents, before CESTAT, Madras, appellant/assessee has sought for a prayer to admit the appeal against the order-inappeal vide No.CMB-CEX-000-APP-183-13 dated 08.05.2013.

8. After considering the averments, submissions and documents, CESTAT, Madras, in final order No.40492/2017 dated 09.03.2017 has passed the following orders, "Record reveals that address of the appellant before ld. Commissioner (Appeals) was as under:- "M/s.RU's Marketing and Creative Unit, Flat No.1, Siddhi Vinayak, Veer Savarkar Road, Prabha Devi, Mumbai - 400 028.

2. The enquiry report came from the Commissionerate shows that the order in Appeal was sent to Mumbai address of the appellant as above. Authority had taken proper steps to serve the appellate order at the address of appellant available on record, Appellant failed to controvert that. No other address was furnished to the office of the ld. Commissioner (Appeal). Therefore, in absence of any logical reason stated, we are not satisfied that the appellate order was not served on the assessees duly and appropriately under law. Accordingly in absence of satisfactory explanation for condonation of delay came up for the appellant, that is not condonable.

3. We are conscious that if delay is not condoned, the appeal goes out of consideration at the threshold. We are conscious that Apex Court in

the case of COLLECTOR, LAND ACQUISITION ANANTNAG AND ANOTHER Vs. MST. KATIJI AND OTHERS - 1987 (28) ELT 185 (SC) has held that no one shall prefer to cause prejudice to himself by a belated appeal. But this is the case where the appellant carelessly exposed itself to prejudice. That rendered this appeal to go out of consideration. We are also conscious of the Apex Court judgment in the case of N.Balakrishna Vs. M.Krishnamurthy - 2009 (228) ELT 162 (SC). Reason of delay has primacy over length of delay. But in the present case, reason of delay remained unexplained. Length of delay was only taken as a shelter to pray for lenient consideration. But for the reasons stated above, delay is not condonable and MA (COD) is accordingly dismissed.

4. In consequence, the appeal stand dismissed."

9. Being aggrieved, the assessee/appellant has filed the instant Civil Miscellaneous Appeal and raised the following substantial questions of law.

"1. Whether the Tribunal was justified in law in holding that the appellant has not furnished the present address of the appellant before the learned Commissioner (Appeals) on the facts and circumstances of the case, which is factually incorrect and an error apparent on the face of the record.

2. Whether the Tribunal was justified in law in holding that the Tribunal was not satisfied that the appellate order was not served on the appellant duly and appropriately under law, when in absence of order-in-Appeal served on the appellant and the same was acknowledged by the learned Commissioner (Appeals) on the facts and circumstances of the case."

10. It is trite law that reason for the delay, has primacy over length of delay. But the question to be considered is whether, CESTAT, Madras, has considered, as to whether, the assessee/appellant was served with the order in appeal, as contemplated under Section 37C(1) of the Central Excise Act, 1944, enabling the assessee to file an appeal within the period, before CESTAT, Madras, under Section 86(5) of the Finance Act, 1994.

11. Earlier, when the matter came up for hearing, while ordering notice to Mr.A.P.Srinivas, learned counsel appearing for the Commissioner of Service Tax, Coimbatore, we directed the department to produce the records relating to the service / communication of the order-in-appeal No.CMB-CEX-000APP-183-13 dated 08.05.2013.

12. Headquarters (Legal Cell) has sent an email dated 23.11.2017 to the learned counsel for the revenue, as hereunder.

"Sir, Pl. find attached some of the documents related to the above case. For Clarification Sl.No.1 - Copy of returned postal cover sent to the appellant is attached (page no.2).

Sl.No.2 - No acknowledgement by the authorised representative for the receipt of the order is available.

Sl.No.3 - Personal hearing letter dated 7.5.2013 sent to M/s.RUs Marketing and Creative Unit, C/O. Levnisia D'Souza, 601-602, Mak Prabha, Opp. Old Prbhadevi Mandir, Kowli Wadi, Prabhadevi, Mumbai - 400 025 and personal hearing letter dated 22.03.2013 sent to M/s.RUs Marketing and Creative Unit, Flat No.1, Sidhi Vinayak, Veer Savarkar Road, Prabha Devi, Mumbai - 400 028.

YF Supdt.(L)

13. Letter enclosed alongwith email is reproduced. A.No.33/2012-ST 04.06.2013 SPAD To M/s.Rajesh Kukreja & Associates, 211, L.S.C., Ashok Vihar, Pocket-B, Phase-III, Delhi, 110 052.

Sir, Sub: Serving of Order-in-Appeal-in respect of M/s.RU's Marketing and Creative Unit, Coimbatore - Reg.

***** Please refer to appeal filed against Order-inOriginal Sl.No.54/2011 (ADC) dated 15.11.2011 passed by the Additional Commissioner of Central Excise, Coimbatore in respect of M/s.RU's Marketing and Creative Unit.

2. The Order-in-Appeal passed vide CMB-CEX-000APP-183-13 dated 08.05.2013 sent to the appellant's address viz. "Flat No.1, Siddhi Vinayak, Veer Savarkar Road, Prabha Devi, Mumbai - 400 028" has been returned undelivered by the postal authorities with a remark "Closed".

3. Hence the subject Order-in-Appeal may be handed over to the appellant and dated acknowledgement obtained from them in this regard may be sent to this office immediately.

Yours faithfully, Encl.As Above Sd/- SUPERINTENDENT (APPEALS) Copy of returned postal cover sent to appellant. OIA No.CMB-CEX-000-APP-183-13 To M/s.RUs Marketing and Creative Unit, Flat No.1, Sidhi Vinayak, Veer Savarkar Road, Prabha Devi, Mumbai - 400 028.

14. Section 37C of the Central excise Act, deals with service of decisions, orders, summons etc., and the same is extracted hereunder.

" SECTION 37C. - (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)."

15. Before adverting to the merits of the case, let us consider few cases on the aspect of service.

(i) In Metal Powder Company Limited Vs. Commissioner of Central Excise (Appeals), Tiruchirapalli, reported in 1997

(89) ELT 475, a learned Single Judge of this Court, at paragraph No.5, held as follows:

"5...The original order signed by the first respondent

has not been communicated to the petitioner. It is not in accordance with law and procedure laid down under Section 11(1)(a) of the Act. Section 37C prescribes the mode of service of decisions, orders, summons, etc., under the act.

.....

In the instant case, the procedure given for service of the appellate order has not been complied with as the first respondent has only communicated the order by telegram and has not sent the original order signed by him by registered post with acknowledgement due. " (ii) In M/s.Sigma Enterprises & another vs. Assistant Commissioner, Commissioner of Central Excise, Customs & Service, Kollam Division, Kollam and another, reported in 2014

(36) STR 985 (Ker), the Kerala High Court, held as follows: "5. In this context it has to be noticed that the address of the 1st petitioner's Registered Office was also known to the respondents, as is evident from Exhibit P5. Exhibit P5 is a communication of the respondent addressed to the Registered Office long before the show cause notice itself was issued. The grievance projected by the petitioner is to be looked into on an analysis of the totality of the circumstances coming to fore. Section 83 of the Finance Act, 1994 contemplates that certain provisions of the Central Excise Act, 1944 would apply to that Act. Section 37C of the Central Excise Act deals with service of decisions, orders, summons, etc. Looking at Section 37C, one of the modes of service is registered post with acknowledgement due.

There is no dispute that the Department had attempted service by that mode and if the Section provided only that, then the decision of the Hon'ble Supreme Court would squarely apply. However, the provision specifically took into account the instances where service could not be effected as provided in clause (a); by clause (b), which mandates affixing a copy of the order, summons or notice on some conspicuous part of the place of business. This procedure admittedly has not been followed by the Department."

(iii) In Neha Cosmetics Vs. Commissioner of Central Excise, reported in 2007 (208) ELT 494 Del, at paragraph Nos.14 to 16, Delhi High Court, held as follows: "14. We are unable to agree with the submissions of the respondent. The wording of Section 37C does not exclude the orders passed by the CESTAT in appeal. The word ?service of decisions? occurring in the title of the Section and the word ?decisions? occurring throughout under Section 35C is, in our view, intended to govern the decisions handed down

by the CESTAT as well. It is true that Rule 35D deals with the procedure to be followed by CESTAT, and the Rules of procedure have also been framed separately. However, Rule 35 of those rules are only supplementary to the statutory provisions. The Rules cannot supplant the statutory requirement under Section 37C which requires that the decisions passed under the Act, which in our view includes those passed by the CESTAT, shall be served on the parties in the manner indicated in that provision. Under Section 37C(2) of the Act, which is similar to Section 27 of the General Clauses Act, 1897 service of the decision is `deemed' on the date that such decision is ?tendered or delivered by post?.

This implies that the initial burden of proof of tender or delivery of such decision by post as required under Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is on the authority dispatching such notice. The sender will have to show that such notice was in fact sent by ?Registered Post? to the addressee.

(2) of Section 37C read with Section 27 of the General Clauses Act, 1897 would stand attracted. The burden thereafter would be on the addressee to show that such notice was not in fact served.

15. We, therefore, hold that the provisions of Section 37C of the Act requiring the service of the decisions passed under the Act, would also apply to the decisions handed down by the CESTAT. This interpretation harmonises Rule 35 of the CEGAT (Procedure) Rules, 1982 with Section 37C. While Section 37C deals with the aspect of service of the decision/order, Rule 35 deals with its dispatch. Both Section 37C and Rule 35 will, therefore, have to be complied with.

16. Turning to the facts and circumstances of the case, we find that apart from filing photocopies of the covering letter enclosing the order dated 22.7.1997 of the CESTAT bearing a date stamp of 5.8.1997, there is no postal receipt produced on the record to show that such a letter was in fact sent by the registered post to the addressee, or that any acknowledgment due card was received from the addressee bearing the addressee's signature. Since there is no proof of even the tender or delivery of the letter enclosing a copy of the order to the addressee by post, the deeming fiction in Subsection (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is not attracted in the present case. In other words, the respondents have not discharged the initial burden of showing that the order dated 22.7.1997 was in fact sent by the registered post to the appellant as contended by

them. In our view, the Tribunal erred in examining whether there was any record ?of the order being returned undelivered to the addressee?. The Tribunal ought to have first examined whether in fact the order was tendered or delivered by post to the addressee as required by the law.

(iv) In Rajaram Jora Vs. The Registrar, Customs Excise Gold (Control), Appellate Tribunal, South Zonal Bench, Sastri Bhavan, Haddows Road, Chennai-6, reported in 2009(238) ELT 413 (Mad) : 2009 (014) STR 0451 (Mad), a learned Single Judge of this Court, held as under:

"12.... Hon'ble Supreme Court in Attabira Regulated Market Committee vs. Ganesh Rice Mills (1996

(9) SCC 471), wherein, it had been held that when a notice had been sent and when neither the acknowledgement nor the unserved envelope had been received by the sender it would be deemed that the notice had been served on the addressee.

"13...... a Division Bench of this Court in P.Bhoormal Tirupati Vs. Additional Collector of Customs, Madras 2000(126) E.L.T.65 (Mad.), wherein it had been held that while reading Section 153 of the Customs Act, 1962, along with Section 27 of the General Clauses Act, 1897, there would be a normal presumption of service, unless the contrary is proved. The service shall be deemed to have been properly effected when a letter properly addressed, pre-paid and posted by Registered Post. Proof to the contrary can only be shown to the limited extent of proving that the service had not been effected at the time at which the letter would be delivered in the ordinary course of post.

14. The learned counsel for the respondents had relied on Section 27 of the General Clauses Act, 1897, to show that it would be sufficient, for the purpose of presuming that the Order-in-Original, dated 11.1.94, passed by the third respondent, was served on the petitioner, in accordance with Section 153 of the Customs Act, 1962, if the said order had been sent by Registered Post. Section 27 of the General Clauses Act, 1897, which reads as follows:

27. Meaning of service by post._ Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the the contrary is

proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.".".....

17. From a reading of Section 27 of the General Clauses Act, 1897, it is clear that the service shall be deemed to be effected, with regard to any document to be served by post, as provided by a Central Act or regulation, by properly addressing, pre-paying and posting by registered post, a letter containing the document. However, nothing has been placed before this Court to show that all the necessary ingredients, as stated above, had been complied with.".

(v) In M/s.Jay Balaji Jyothi Steels Ltd., Vs. Customs, Excise & Service Tax, reported in 2015(37) STC 673 (Ori), a Hon'ble Division Bench of Orissa High Court held as follows: 6..... Section 28 of the Indian Post Office Act, 1898 which is quoted hereunder:

"Section 28. Registration of Postal articles.- The sender of a postal article may, subject to the other provisions of this Act, have the article registered at the post office at which it is posted, and require a receipt therefore; and the [Central government] may, by notification in the [Official Gazette], direct that, in addition to any postage chargeable under this Act, such further fee as may be fixed by the notification shall be paid on account of the registration of postal articles."

It would be relevant also to take note of the fact that an amendment was brought into the Indian Post Office Rules, 1933, by a Gazette Notification issued by the Ministry of Communications Department of Posts), Government of India dated 24th July, 1986 introducing "Inland, Speed Post Service" by inserting Rules 66-B thereto which is quoted hereunder:

"Rule 66-B. INLAND SPEED POST SERVICE.- Inland Postal articles may be booked after obtaining receipts therefor, at the places specified in column(1) of the Schedule below and the post offices specified in the corresponding entries in column (2) of the said Schedule for delivery under the Inland Speed Post Service subject to the following conditions namely:

(1) Inland Speed Post Service shall be available in respect of all classes of mails, which can be sent by the registered service:

xxx xxx xxx xxx xxx xxx xxx"

In view of Section 28 of the Indian Post Office Act, 1898 read with Rule 66-B of Indian Post Office Rules, 1933 (as inserted vide Gazette

Notification dated 24th July, 1986), any postal article i.e. registered at the post office from which it is posted, and a receipt issued in respect of such article is to be treated as "registered post". Both in the case of "registered post" as well as "speed post", the articles when delivered to the post offices, receipts thereof are required to be issued and consequently, both "speed post" and "registered post" satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all is the charges payable are normally higher for "speed post" as the name suggests the delivery of such articles at an early date."

"9...It is well settled in law that where an amendment which is brought about is "clarificatory in nature", the same would date back to the date on which the original provision was introduced. No doubt, prior to the amendment on 10.5.2013, the word "registered post" found mentioned in Section 35(C) of the Central Excise Act. In view of Section 28 of the Indian Posts Office Act, 1898, we are of the considered view that both "registered post" as well as "speed post" would come within the fold of Section 28 of the Indian Post Office Act, since on delivery of the postal article, receipt thereof are issued by the Postal Department and consequently, the addition of the term "speed post" with amendment on 10.5.2013 is in our considered view, merely clarificatory and hence, retrospective in its operation."

11.... post amendment vide Finance Act, 2013 (17 of 2013) w.e.f. 10.5.2013, the following amendment came to be incorporated in Section 37C (1)(a) of the Central Excise Act, 1944 which is as follows:

"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 [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 authorized agent, if any."

On perusal of the aforesaid amended provision, it is clear that after the words "sending it by registered post with acknowledgment due" the words

i.e. "or by speed post with proof of delivery" has been inserted. The aforesaid amendment itself would clearly shows that the amendment sought to be made is not only clarificatory in nature but also purely procedural for the purpose of communication of decisions/orders/summons to the parties.

12.... In Shyam Sunder and others vs. Ram Kumar and another, 2001(8) SCC 24, affirmed the judgment of apex Court earlier in the case of R. Rajagopal Reddy (dead) by Lrs. & Ors. Vs. Padmini Chandrasekharan (dead) by Lrs., 1995 (2) SCC 630 to the following effect:

"Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended....A clarificatory amendment of this nature will have retrospective effect and therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."

Following the judgment of the Hon'ble Supreme Court as noted hereinabove, we are of the considered view that the insertion of the words "Speed Post" under Section 37C)(1)(a) of the Central Excise Act, 1944 is clearly curative since various High Courts as quoted hereinabove had came to hold that "communication of notices through speed post was in consonance with law". Further this amendment is purely explanatory since Section 28 of Indian Post Office Act, 1988 read with Rule 66-B of the Indian Post Office Rules, 1993 (as amended on 24th July 1986). In our considered view, the insertion of "speed post" within the scope and ambit with the "registered post" as mandatory thereunder.

Consequently, the amending statute is held by us as "clarificatory amendment" and would have retrospective effect and, therefore, the argument to the contrary by the learned Sr. Counsel for the petitioner hereby stands rejected.."

(vi) In M/s.Premier Garment Processing Vs. The Customs, Excise & Service Tax Appellate Tribunal, South Regional Bench, Annexe, Nungambakkam, Chennai - 600 006 and another, reported in 2015 (39) STR 812 (Mad) after considering the contentions

of rival parties, a Hon'ble Division Bench of this Court, at paragraph Nos. 9 to 13, held thus, "9.The primary contention raised by the learned counsel appearing for the appellant is that Section 37C

(1) (a) of the Central Excise Act, as it stood then, does not speak about service of notice through 'speed post'. Further, it is submitted that proof of dispatch cannot be a proof of receipt and limitation should be reckoned only from the date of receipt of order. In the case on hand, it is seen from the letter written by the Superintendent (Appeals) that the order of the Commissioner (Appeals) was dispatched on 9.5.11 by speed post. However, there is no proof as to when the same was received by the appellant. It is the stand of the appellant that he received a copy of the order only on 23.12.11, whereinafter the appellant preferred the appeals before the Tribunal. Reckoning the limitation from 23.12.11, the appeals filed by the appellant on 4.1.12 is well within time.

The further contention of the counsel for the appellant/assessee is that prior to 10.5.13, service through speed post was not one of the approved/recognised modes of service, as is evident from Section 37C (1) (a) of the Act and, therefore, if such notice had been sent by speed post, the same cannot form the basis for the Tribunal to reject the appeals filed by the appellant as time barred, as the statutory prescription for service of notice has not been complied with by the Department.

10. It is evident from Section 37C (1) (a) of the Act, prior to 10.5.13, service through speed post was not one of the modes of service of orders, decisions, summons, etc. On and from 10.5.13, speed post was made as one of the modes of service for orders, decisions, summons, etc., provided it is supported by proof of delivery. Therefore, it is clear that proof of service is mandatory for the service effected through speed post on and after 10.5.13, but prior to 10.5.13, service through speed post not being a recognised/approved mode of service as per the provisions of the Act, any service effected through speed post is not binding on the appellant/assessee.

11. It is trite law that limitation has to be reckoned only from the date when the actual service has been effected, subject to fulfilling the mandatory requirement of showing proof of delivery. In the case on hand, the service of notice was effected on the appellant only on 23.12.2011 and there is nothing on the record to show that it was served on 9.5.11. Further, the order has been dispatched through speed post on 9.5.11, as is evident from the letter of the Superintendent (Appeals). However, prior to 10.5.13, service through speed post having not been a recognised/approved mode of service, it cannot be

treated as service for reckoning the period of limitation. For the sake argument, even if the order is said to have been delivered by RPAD on 9.5.11, which apparently has not happened in this case, no proof having been filed to support such delivery, which is the mandatory requirement as per Section 37C (1) (a) of the Act, it is clear that the service of notice in the manner as prescribed under Section 37C (1) (a) has not been effected.

12. Further, it appears that the appellant was informed vide letter of the Superintendent (Appeals) dated 22.12.11, wherein he was informed about the order dated 25.4.11. Only thereafter, the appellant preferred the appeals, on 4.1.12. In such circumstances, the appeals filed is very much in time. Therefore, in such view of the matter, this Court is of the considered opinion that question of delay does not arise in this case, as the filing of the appeals are well within time. Accordingly, the substantial question of law is answered in favour of the appellant/assessee and against the respondent/Revenue.

13. In the result, the order of the Tribunal is set aside and the appeals are allowed. The Tribunal is directed to take up the appeals and stay petitions on file and dispose of the same on merits and in accordance with law at an early date. Consequently, connected miscellaneous petitions are closed. However, in the circumstances of the case, there shall be no order as to costs. "

16. From the above, it is evident that the certified copy of the appellate order dated 08.05.2013 has not been served, either on the assessee or the authorised representative, as the case may be, in the manner as contemplated under Section 37C(1)(a) of Central Excise Act, 1944 made applicable to Service Tax, as per Section 83 of Finance Act, 1994.

17. By dismissal of the delay excuse petition, CESTAT, Madras has dismissed the appeal also. While giving due consideration to the submissions and decisions, we are of the view that the appellant is entitled to succeed on the substantial questions of law raised, in the instant appeal.

18. Thus, we answer the substantial questions of law raised in the instant appeal, in favour of the assessee, and as against the revenue. Computation of time for filing an appeal starts from the date of service of certified copy of the order. In the instant case on hand, certified copy has not been served, in the manner as stated supra. Hence, we hold that there is no delay, in filing the appeal, as against the order-in-appeal No.CMB-CEX-000-APP-183-13 dated 08.05.2013, passed by the Commissioner of Customs, Central Excise & Sales Tax (Appeals), Coimbatore. Order impugned before us, in final order No.40492/2017 dated 09.03.2017 is

set aside. CESTAT Madras, is directed to assign appeal number and hear the same and pass orders in accordance with law, as expeditiously as possible.

19. With the above directions, the Civil Miscellaneous Appeal is allowed. Substantial questions of law are answered in favour of assessee. No costs. Consequently, the connected Civil Miscellaneous Petitions are closed.

Sd/- Assistant Registrar(CS IV) //True Copy// Sub Assistant Registrar ars To 1.The Commissioner of Service Tax, Office of the Commissioner of Service Tax, 6/7, ATD Street, Race Course Road, Coimbatore - 641 018 2.The Commissioner Custams, Central Excise & Service Tax, Coimbatore +1cc to MR.S.Arun Prasath, Advocate sR.No.88397 +1cc to Mr.A.P.Srinivas, Advocate SR.No.88297 RJ(CO) sm:17.1.2018 CMA No.3141 of 2017 and CMP Nos.19383 & 19384 of 2017