The main legal point established in the judgment is the justification of the imposition of penalty under Section 76 of the Finance Act, 1994, and the interpretation of the provisions related to the service of decisions, orders, and summons under the Central Excise Act, including the presumption of service when documents are sent by registered post or speed post.

Alok Verma, J.

This Central Excise Appeal is filed, aggrieved by order passed by the learned Commissioner (Appeals) in Appeal No. IND/CEX/000/APP/357&358/2011, dated 9-9-2011 by which the learned Commissioner (Appeals) disposed of by a common order, filed by the Revenue, Appeal No. 246/2011 and appeal filed by the present Appellant No. 492/2011 and also against the order passed by the learned Custom Excise and Service Tax Appellate Tribunal (hereinafter called 'the Appellate Tribunal') in Service Tax Appeal No. 1803/2011.

2. Inadvertently, this appeal was admitted without framing substantial question of law, and therefore, on 23-2-2016, the respondents/department was granted two weeks time; to file a counter affidavit about the receipt of copy of the order dated 22-9-2010. The affidavit was filed by the department on 10-3-2016.

3. In this appeal, following substantial question of law arises for consideration :-

"Whether the learned Tribunal was justified in dismissing the appeal of the appellant on account of delay in filing of appeal before the respondents as the order in original passed by the Additional Commissioner (Appeals) was never delivered to the appellant?"

4. The facts relevant for disposal of this appeal are that appellant is a statutory body under Madhya Pradesh Municipal Corporation Act, 1956 and is constituted under Section 243Q of Constitution of India. The appellant has been providing space for installing the hoardings to the advertising agency and charged advertisement tax for the same. However, such activity of the appellant is not covered under the heading of "Sale of Space or Time for Advertisement".

5. An enquiry was initiated by STTF branch of Chief Commissioner Office, Bhopal and certain information was called from the appellant which was supplied by the appellant on 24-5-2007, 25-8-2007 and 12-10-2007. A show-cause-notice dated 8-6-2009 was received by the appellant in which demand of Service Tax amounting to Rs. 5,09,573/- and Education Cess amounting to Rs. 10,191/- was raised against the appellant for the period from 1-5-2006 to 31-10-2006 and also interest and penalty was also demanded. The appellant filed a reply to the notice on 28-10-2009. The Additional Commissioner of Central Excise Division-Indore passed the order in original Bearing No. 175/ADC/ST/IND/2009-2010, dated 30-3-2010 and confirmed the total demand of service tax amount to Rs. 5,19,764/- under Section 73 of the Finance Act, 1994 and also imposed interest and penalty thereon. Copy of the order passed in original dated 30-3-2010 was not received by the appellant.

6. As the adjudicating authority did not impose any penalty under Section 76 of Finance Act, 1994, therefore, a review order was passed by Commissioner, Customs & Central Excise, Indore which is marked as (Annexure A/4). The Revenue went an appeal against these two orders which was registered as Appeal No. 246/2010 and respondents received notice on 22-9-2010. According to the appellant prior to this date, he did not receive any notice about the orders passed against him. The authorised representative of the appellant appeared for personal hearing on 26-11-2010 and submitted that they had not been able to prepare cross-objections due to non receipt of original order and review order, and therefore, they may be granted a week's time to file cross-objections. Their plea was accepted and cross-objections were filed on 3-12-2010. On the same date, the appellant also filed an appeal against the order passed in original as well as the review order before the appellate authority which was registered as No. 492/2011. The Appellate Authority by the impugned order made following observations in respect of appeal and the cross-objections filed by the appellant :-

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7.1 First of all, I take up to decide the Appeal No. 246/2010. In this appeal, the only issue to be decided is regarding imposition of penalty against Indore Municipal Corporation, Indore (the Respondent) un