By TIOL News Service

NEW DELHI, AUG 03, 2018: WHILE dismissing the appeal filed by the assessee, the Commissioner (A) had observed thus:-

"…the impugned order dated 29.02.2017 was dispatched from division office on 07.03.2016 and received by all concerned i.e. Range office, Headquarter and Review branch within 10 or 15 days. Naturally it was received by the Appellant within the same period being in the same city. Since the Appellant has shown the date of receipt of impugned adjudication order as 12.05.2017 which is after more than one year, the onus of proof lies on the Appellant to prove that said date viz. 12.05.2017 is the actual date of receipt of impugned adjudication order by the Appellant which they have failed to discharge and hence the date of communication of order shown as 12.05.2017 in the appeal memo by the Appellant is not accepted as actual date of receipt of said order in the absence of any supporting evidence submitted by the Appellant."

Against this order, the assessee is before the CESTAT and submits that Section 37C(1)(a) of CEA, 1944 provides that any decision or order passed under this Act shall be served by tendering the decision, order, summons or notice, or sending it by registered post with the acknowledgment due or by speed post with proof of delivery or by approved courier, to the person for whom it is intended or on his authorized agent, if any; that them the essential element in service by post is "acknowledgment due".

The AR submitted that the onus of proof lies on the assessee to prove that 12.05.2017 is the actual date of receipt of O-I-O and since they failed, their appeal was rightly dismissed.

After considering the submissions, the Tribunal observed -

++ There is no proof of delivery of O-I-O on assessee. The Department is presuming that since the O-I-O which was dispatched by Division office on 07.03.2016 was received by their Range officer, Headquarter and Review branch within 10 to 15 days, therefore, the same ought to have been received by assessee also within the same period, being in the same city.

++ As per Section 37C, it was mandatory on the part of Revenue to serve a copy of the order by registered post or speed post with 'acknowledgment due' to the assessee or to its authorized agent. Admittedly, there is no acknowledgement available on the record of the Revenue supporting the assumed date of service by the Department. The Revenue's only ground for holding the said order as having been received by assessee is that the same was sent by the speed post and does not stand received back by the Revenue.

++ The issue whether the dispatch of order by speed post by itself is sufficient to reflect upon the fact of receipt of the same or not was considered by Larger bench of Tribunal in the case of Margra Industries Ltd. - 2006-TIOL-1223-CESTAT-DEL-LB in which it was held that it cannot be presumed that the dispatch of the order by speed post, in the absence of any proof of delivery, results in communication of the order.

The impugned order was set aside and the Commissioner (A) was directed to hear the assessee on merits and dispose of the appeals.

(See 2018-TIOL-2376-CESTAT-DEL)