The main legal point established is that sending the order by registered post at the correct address constitutes valid service under Section 37C of the Central Excise Act, 1944, and the burden of proof lies with the assessee to demonstrate non-service.

Alok Singh, J.

1. By way of present writ petition filed under Articles 226/227 of the Constitution of India, petitioner is assailing order dated 28.8.2006 (Annexure P-2) passed by the Customs, Excise & Service Tax Appellate Tribunal (CES-TAT ) Principal Bench, New Delhi.

2. Brief facts of the present case are that M/s. Mohan Bottling Co. engaged in the manufacture of aerated water falling under the head No.22.01 and 22.02 of the Schedule to the Central Excise Tariff Act, 1985. Respondent had failed to include a total sum of Rs.1,16,35,433/- (transportation charges Rs.1,10,58,729/- and notional interest on deposits of Rs.5,76,704/-) in the assessable value of aerated waters cleared during the period 1.3.1994 to 31.8.19997 in contravention of Section 4 of the Central Excise Act, 1944 (herein after referred to as he 1944 Act). Respondent was issued show cause notice for recovery of short paid duty alongwith interest and penal action against him; the Commissioner, Central Excise Commissionerate, Chandigarh-I confirmed the demand of duty of Rs.71,65,816/- and also imposed equal penalty on the respondent vide order No.160- 167/CE/98/859 dated 1.2.1999, which was despatched to the respondent through registered post. Respondent challenged the order dated 1.2.1999 by way of appeal before the CESTAT. Preliminary objection was raised by the Revenue that appeal before the Tribunal is barred by time. Assessee submitted before the Tribunal that limitation for filing the appeal would commence from the date order is actually/physically served. Questior. then arose as to whether as per Section 37C of the Act, order is to be physically served or sending the order through registered post at the correct address of the assessee is sufficient compliance. Reference was made to the Larger Bench of the Tribunal. Larger Bench of the Tribunal vide impugned order dated 28.8.2006 replied the reference on the ground that despatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery of speed post. Order of the Appellate Tribunal is under challenge before us in the writ petition.

3. We have heard learned counsel for the parties and perused the record.

4. Learned counsel for the petitioner argued that as per Section 37C of the 1944 Act, despatching decision, order, summon or notice by registered post with Acknowledge Due, is sufficient compliance without actual proof of delivery. Order was despatched by registered post and envelop containing the order was properly addressed.

5. Section 37C of the 1944 Act reads as under:-

"37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons or notice 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)."

6. From the perusal of sub-section (2) of Section 37C of the 1944 Act, we have no hesitation to hold t