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2016 Supreme(Raj) 943
IN THE HIGH COURT OF RAJASTHAN
Govind Mathur and Vineet Kothari, JJ.
Vinod Choudhary - Appellant
Versus
Union of India - Respondent
D.B. Central Excise Appeal No. 45 of 2015
Decided on : 07-04-2016
For the Appellant :Dr. A.A. Bhansali, Advocate.
For the Respondent:Jagat Tatia, Advocate.
The main legal point established in the judgment is that the Tribunal must satisfy itself about the delivery or tendering of the notice before presuming that the notice was served, as per sub-section (2) of Section 37C of the Central Excise Act, 1944.
Headnote:
Service of Notice - Central Excise Act, 1944 - The court held that the Customs, Excise and Service Tax Appellate Tribunal was not justified in accepting that the notice was adequately served upon the appellant solely based on the fact that it was sent by post. The court emphasized that the Tribunal must satisfy itself about the delivery or tendering of the notice before presuming that the notice was served, as per sub-section (2) of Section 37C of the Act of 1944.
Fact of the Case:
The appellant contested the service of a notice issued under the Central Excise Act, 1944, arguing that no evidence was adduced to prove that the notice was served upon them.
Finding of the Court:
The court found that the Tribunal was not justified in accepting that the notice was adequately served based solely on the fact that it was sent by post. It emphasized the obligation of the Tribunal to satisfy itself about the delivery or tendering of the notice before presuming that the notice was served.
Issues: The issue revolved around the adequacy of the service of the notice issued under the Central Excise Act, 1944, and whether the Tribunal was justified in accepting that the notice was adequately served based solely on the fact that it was sent by post.
Ratio Decidendi: The court's decision was based on the interpretation of sub-section (2) of Section 37C of the Central Excise Act, 1944, which emphasizes the obligation of the Tribunal to satisfy itself about the delivery or tendering of the notice before presuming that the notice was served.
Final Decision: The court allowed the appeal, set aside the previous orders, and remanded the matter for adjudication on merits by the Appellate Authority, emphasizing that the appellant must appear before the Appellate Authority and deposit 25% of the principal amount for the appeal to be decided on merits.
This appeal was admitted on 8-3-2016 to examine the following substantial question of law :-
“Whether the Customs, Excise and Service Tax Appellate Tribunal under the order dated 17-6-2015 is justified in accepting that the order dated 21-12-2010 was adequately served upon the appellant though no evidence was adduced as to whether the post was ever tendered or affixed in the manner provided under sub-section (1) of Section 37C of the Central Excise Act, 1944?”
2. The submission of learned counsel for the appellant is that no material was available with the respondent No. 2 to arrive at the conclusion that the notice issued was ever served upon the appellant.
3. Learned counsel appearing on behalf of the respondent submits that as per Section 37C of the Central Excise Act, 1944 every decision or order passed or any summons or notices issued under this Act or the rules made there under, 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) of Section 37C.
4. As per learned counsel in view of the fact that the notice was sent by post, it is to be deemed that the service was effected.
5. We do not find any merit with the stand taken by the respondents.
6. It is obligatory upon the Tribunal to satisfy itself about delivery or tendering of the notice before presuming that the notice was served as per sub-section (2) of Section 37C of the Act of 1944. No such prima facie satisfaction has been recorded by the Tribunal. In view of it, this appeal deserves acceptance.
7. Accordingly, the same is allowed. The order dated 9-6-2015 passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi and the order dated 15-10-2013 passed by the Commissioner, Customs & Central Excise (Appeals-I), Jaipur are set aside. The matter is remanded for its adjudication on merits by the Appellate Authority. The appellant shall appear before the Appellate Authority, i.e., the Commissioner, Customs & Central Excise (Appeals-I), Jaipur on 16-5-2016 and the Commissioner shall decide the appeal on merits provided the appellant deposits 25% of the principal amount.
8. The appeal stands disposed of accordingly.
Appeal allowed.
