ORDER
K.C. Mamgain, Member (T)
1. The applicants are seeking stay of recovery of penalty of Rs. 6,05,661/- on the ground that the Commissioner (Appeals) has rejected their appeal on limitation. The Commissioner (Appeals) in their earlier case allowed their appeal on merits on the same issue. It was also stated that the unit has gone before BIFR for rehabilitation and the unit is still lying closed.
2. On limitation, it was pleaded by Shri Bansal, the learned Advocate that the applicants had not received the letters sent by registered post/speed post as has been held by the Commissioner (Appeals). They had written a letter to the Joint Commissioner on 15-3-2004 and the Joint Commissioner Audit has sent them the photocopy of the Order-in-Original which was received by them on 21-5-2004 and they had filed the appeal on 9-6-2004. Thus prima facie the decision of the Commissioner (Appeals) holding the appeal as time barred is not correct. He relied on decision of Bombay High Court in the case of Pravin Mansukhlal Mehta v. Union of India and Ors. [1988 (34) E.L.T. 422] where it was held that period of limitation commences from date of receipt of Order appealed against. He also relied upon the decision in the case of Damodar Keru Naiknaware v. Commissioner of Customs, Bombay [1985 (22) E.L.T. 212] where it was held that in the absence of evidence on the part of the Department regarding date of communication of order to the party, date of receipt by the latter to be taken as date of communication.
3. Shri Verma, learned DR appearing on behalf of the Revenue, pleaded that the Department has sent the Order-in-original on 2-12-2003 for service by speed post. In support of his claim, he submitted the copy of the speed post booking list dated 2-12-2003 wherein at S. No. 22, the name of the applicants is mentioned. He pleads that once, they have sent the letter by a registered speed post, and the letter was not received back by the Department, therefore, it can be inferred that the letter has been served on the applicants. He pleaded that once letter has been sent by the speed post, then within a reasonable period of one week or so, from the date of despatch, letter must have been served. Therefore, the Commissioner (Appeals) has correctly held that the appeal was time barred and the applicants has not been able to make out the case in their favour.
4. We have considered the submissions of both the sides, we find that under Section 37C of the Central Excise Act, any decision or Order passed or any summoned issued shall be taken as served (a) by tendering the decision or summon or notice or sending it by registered post with acknowledgement due, to the person for whom it is intended or to authorized agent, if any. We find that the Department has been able to establish that they have sent the decision by Speed Post. According to Section 27 of the General Clause Act, 1897, where any Central Act or regulation made authorized or requires any document to be served by post, whether the expression ‘serve’ or either of the expression ‘give’ or ‘send’ or any other expression is used, then unless a different intention appears, the service shall be deemed to be affected by properly addressing, prepaying and posting by registered post, a letter containing the document and unless contrary is proved, to have been effected at the time at which a letter could be delivered in the ordinary course of post. We find that in the present case, the decision was sent by registered speed post. Therefore, the presumption is that, it would have been served on the applicants within a reasonable time. The appellants could not establish by any evidence that the letter was not served on them. Therefore, prima facie they have not been able to make out a case in their favour. We have also considered the financial hardship pleaded by them and considering the facts and circumstances, the applicants are directed to pre-deposit Rs. 3,00,000/- (Rupees Three Lacs only) within a period of eight weeks and report compliance on 25-8-2005. On such deposit, the recovery of the balance amount is waived till disposal of appeal.
(Dictated and pronounced in the open Court on 20-6-2005)