M.V. Ravindran, Member (J)
1. The issue that is referred to the larger bench in this case is as follows:
i) Whether despatch of the adjudication order by speed post amounts to a valid service under Section 153(a) of the Customs Act, 1962 in absence of proof of actual delivery of the speed post?
ii) Whether simultaneous affixing of the order on the notice board while dispatching it by speed post is sufficient compliance of Section 153(b) of the Customs Act?
2. The relevant facts that needed reference were that the assessee in the given cases filed an appeal within the statutory time of appeal from the date of receipt of the order by them and the department raised a preliminary objection from entertaining the appeal on the ground that there was delay in filing the appeal.
3. The learned advocate appearing for the appellant submits that the statutory provisions as envisaged in Section 153 of the Customs Act, 1962 is very clear in as much as that the order has to be physically served upon the appellant. It is his submission that until the order is received, the appellant cannot file an appeal. It was submitted that just by handing over the order to the post office for the onward despatch by Registered post in itself not enough to count the time limit but it will start from the time the order is received in hand by the appellant. He relied upon the following case laws:
1. Teletube Electronics Ltd. v. Delhi Sales Tax Appellate Tribunal (Del. HC) 2003 (132) STC 424 (Del.);
2. CIT v. Lunar Diamonds Ltd. (Del) ;
4. Gopal Chadha v. CEGAT, New Delhi ;
5. Rajshree Dyeing & Printing Mills Pvt. Ltd. v. UOI .;
6. Vadilal Industries Ltd. v. UOI 2006 (73) RLT 435 (Guj);
8. Shri Ashish Gupta v. CCE, Chandigarh 2006 (131) ECR 171;
9. P. Bhoormal Tirupati v. Addl. Collector of Customs, Madras 2000 (126) ELT 65 (Mad);
10. Bharat Nandlal Kalyani v. Collector of Customs (Prev.) 1997 (94) ELT A 251;
11. Amrul Mahalder v. Commissioner of Customs (Prev.), Kilkata 2005 (182) ELT 492;
14. Manohar Lal v. Gold Control Administrator ;
15. Pravin Mansukhlal Mehta v. UOI (Bom);
16. K. Rama Rao v. Addl. Collector of Customs, Calcutta (Mad);
17. Damodar Keru Naiknaware v. Collector of Customs
4. Learned advocate appearing for the appellant in appeal tagged (Appeal No. E/968 of 1999) tagged on with this reference, submits that his appeal is in respect of the Excise and provisions of Section 37C of the Central Excise Act, 1944 are relevant. It is his submission that Section 37C contemplates the physical receipt of the order to the appellant and not merely posting the same by Registered Post. It is his submissions that the proof of delivery of the order is rebuttable. He adopts the submissions made by the advocate in the customs case. He places reliance on the judgments of Hon'ble High Court of Gujarat in the following cases:
(i) Rajshree Dyeing & Printing Mills Pvt. Ltd. v. UOI .;
(ii) Vadilal Industries Ltd. v. UOI 2006 (73) RLT 435 (Guj.)
5. The bench on the first day of the hearing requested learned advocate Shri L.P. Asthana to help the bench as amicus curiae in the matter. He submitted that the issue as is referred to the larger bench has not been directly settled by any judgment of the apex court. It is his submission that the ratio has to be drawn from the various judgments of the apex court, delivered in respect of service matters. It is his submission that the in the service matters the apex court has held that for the suspension of an employee there need not be any actual service but a proof of delivery of the order in the post office is enough but in respect of termination of the services it is necessary that the order has to be served on the person. He submitted that the apex court in all their judgments interpreted provisions of Section 27 of the General Clauses Act, which indicates that delivery of the order to the post office is in itself enough to conclude that there was a service of the order. He relies upon the following case laws:
1. Alka Watches Pvt. Ltd. v. UOI and Ors. ;
2. K. Rama Rao v. Addl. Collector of Customs, Calcutta and Anr. ;
3. Surjit Kaur and two Ors., Amritsar v. Collector of Central Exicse & Customs, Chandigarh ;
4. Damodar Keru Naiknaware v. Collector of Customs ;
6. M.V. Chidambaram and Ors. v. Collector of Customs, Madras ;
7. Haresh Chimanlal Vora and Ors. v. Collector of Customs, Cochin 1989 (35) ELT 182 (Tri.);
8. Manoharlal G. Jewellers v. Gold Control Administrator 1998 (35) ELT 603 (Tri.);
9. Bharat Nandlal Kalyani v. Collector of Customs (Prev.) 1988 (36) ELT 645 (Tri.);
13. Vasudevan v. Asst. Collector of Central Excise & Customs ;
16. Segu Lebbai Segu Alavudeen Ismathsaibu v. UOI ;
18. Sewing Systems (P) Ltd. v. CCE 1997 (89) ELT A36. S.C;
19. A.F. Gani v. Commissioner of Customs, Madras (Tri.);
20. Bharat Nandlal Kalyani v. Collector 1997 (94) ELT A.251;
21. CCE, Jaipur v. Suresh Kumar Parihar 1999 (108) ELT 430 (Tri.);
22. Ambali Karthikeyan v. CC & CE 2000 (125) ELT 50 (Ker.);
23. Overseas Paints Linkers v. UOI ;
24. Rajaram Jora v. CC. - ;
25. Rashtriya Audyogic Sansthan v. CCE, Kanpur 2001 (135) ELT 353 (Tri. Del.);
26. Vishuvardhan Paper Mills (P) Ltd. v. C.C. Chennai 2001 (137) ELT 1350 (Tri.-Chennai)
27. Sha Moolchand Prapochandji Gandhi v. C.C. (Airport), Chennai ;
28. Rajesh Kumar v. Commissioner of Customs, Patna 2005 (165) ELT 315 (Tri.-Del.);
29. Corvine Chem. & Pharmaceuticals Ltd. v. Commr. Of Central Excise, Chennai ;
31. Lalchand Bhimraj v. Commissioner of Customs, Chennai ;
35. Rajshree Dyeing & Printing Mills Pvt. Ltd. v. UOI ;
36. Mercury Industries v. CCE, Chennai 2005 (191) ELT 164 (Tri.-Chennai);
37. Deepak Nitrite Ltd. v. CC (Adj.), Mumbai 2005 (191) ELT 597 (Tri.-Mumbai);
38. Sterling Agro Product Processing Pvt. Ltd. v. CC, Bangalore 2005 (191) ELT 755 (Tri.-Bang.);
39. Deendayal Didwania v. CC, Mumbai 2005 (193) ELT 300 (Tri.-Mumbai);
40. Hindustan Lever Ltd. v. CCE, Chennai-IV 2006 (194) ELT 352 (Tri.-Mumbai);
42. B. Bhoormal Tirupati v. Addl. CC, Madras AIR 1974 Nadras 224;
43. UOI and Ors. v. Dinanath Shantaram Karekar and Ors. ;
6. The learned Senior Departmental representative on the other hand submits that as per Section 153 or Section 37C the revenue has to prove that they have despatched the order by registered post and their responsibility ceases. It is his submission that once the order is handed over to post office to be transmitted thru registered post it is presumption that the appellant receives the order. It was submitted that it is not for the revenue to prove the contrary by producing the acknowledgement card. It is his submission that the receipt of the order is no doubt is rebuttable but it is dependent upon the circumstances of the case. Further it was submitted that the provisions of Section 153 or 37C of the relevant acts only specify the mode of service of the order and the provisions of the Section 27 of the General Clauses Act 1897, amply make it clear that once the order is delivered to the post office with correct address and stamps then the order is presumed to be delivered to the addressee. He relies upon the following case laws in support of his propositions:
2. Harcharan Singh v. Smt. Shivrani and Ors. 1981-(068)-AIR-1284-SC;
3. K. Bhaskaran v. Sankaran Vaidhyan Balan 1999-AIR-SC-3762;
4. M.A. Mohamed Ismail v. State of Tamil Nadu 1999 (10) JT 372;
5. Sukumar Guha v. Naresh Chandra Ghosh ;
6. M. Adambhai v. B. Ramdas ;
7. Chellapan v. Addl. Collector of Customs 1978 (2) ELT (J547) (Ker.);
8. C.D. Govinda Rao v. Addl. Secretary to the Govt, of India ;
9. Union of India v. Kanti Tarafdar ;
10. Rajesh Kumar Jain v. UOI ;
11. P. Bhoormal Tirupati v. Addl. Collector of Customs, Madras 2000 (126) ELT 65 (Mad.);
15. Amrul Mahalder v. Commissioner of Customs (Prev.), Kolkata ;
7. We have considered the submissions made at length by all and perused the case laws cited by them. The proposition that once the order is delivered in the post office for onward transmission to the addressee in itself is a good service has to be considered with reference to the provisions of Section 153 of the Customs Act, 1962 and Section 37C of the Central Excise Act, 1944. The relevant sections are read:
SECTION 153. Service of order, decision, etc. - Any order or decision passed or any summons or notice issued under this Act, shall be served-
(a) by tendering the order, decision, summons or notice or sending it by registered post to the person for whom it is intended or to his agent;
or (b) if the order, decision, summons or notice cannot be served in the manner provided in Clause (a), by affixing it on the notice board of the customs house.;
SECTION 37C. service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices 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 acknowledgement due, to the person for whom it is intended or his authorized 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).
It can be seen that the both the sections provide for the mode of service of the order or decision passed or summons or notice. It is seen that the Sub-section (a) of Sections contemplate the service of the order/decision/summon/notice firstly by tendering, i.e. in other words by hand delivering to the assessee. In case such hand delivery is not possible then the order/ decision/ summon/ notice has to be sent by registered post. If the submissions of the revenue are to be accepted then the date of delivering the order/ decision/ summon/ notice has to be construed as having been delivered in ordinary course of post. We are afraid we cannot agree with this proposition in as much that it may be possible that the registered post may not have reached the assessee for a number of reasons, would it be still can be construed as service of the order/ decision/ summon/ notice. It would be presumptive to come to conclusion that delivery of the order /decision/ summon/ notice is completed if delivered to post office. In taxing matters like Customs and Central Excise there would be no scope for the presumption, as it would deprive the assessee's right to agitate the matter. We find that this is not the intention of the legislature in as much that, both the sections have subsections which contemplate the alternate mode of service of the order/ decision/ summon/ notice enshrined in the failure to serve the assessee as provided under Sub section (a). If it has to be presumed that once the delivery of the order/decision/summon/order is delivered to post office then the law makers would have left it there only. Since, both the sections provide for alternate service of the order/decision/summon/notice in the failure of service by Sub-section (a), it would mean that the order/decision/summon/notice has to be made known to the assessee. This is the specific reason that the alternates are provided in the statute as regards making the assessee aware of the order/decision/summon/notice. The alternate modes of services has to be considered by the authority only if the first two modes have failed and hence simultaneous affixation of the order on the notice board would also not serve the legal requirement.
8. It was argued that the provisions of Section 27 of the General Clauses Act, 1897 would apply in all cases. We read the section:
27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
The said section no doubt creates a fiction of deemed service if the conditions of addressing, pre-payment and posting by registered post are complied with, but the said section also has implied meaning that this presumption has to be construed if and if only " then unless a different intention appears" from the Central Act or Regulation. It would mean that if the Act or Regulation does not have any other clauses of valid service then the presumption of deemed service as indicated in Section 27 of General Clauses Act would come in to play. It can be seen from the above-reproduced section of both the acts that, the presumption of deemed service cannot be read in view of the subsequent sub-sections in both the sections. To our mind the provisions of Section 153 of the Customs Act and Section 37C of the Central Excise Act, clearly indicate a different intention as regards service of the order / decision/summon/ notice. In view of this reliance placed by the revenue on Section 27 of General Clauses Act, 1897 is misplaced. Further we find that all the decisions cited before us have specifically not dealt with the legislative intention of the Customs Act and Central Excise Act.
9. Hon'ble High Court of Gujrat in their judgment in the case of Vadilal Industries Limited (supra) has held as under:
13. In the present case, the Registry of the tribunal has categorically averred that it had sought to effect the service in the manner laid down in Section 37C(1)(a) of the Act and the envelope had been returned unserved. Therefore, the Registered Post had not been acknowledged. Thereupon, it became necessary for the authority to effect service in the mode prescribed under Section 37C(1)(b) of the Act, and in the event of non-service by the said manner, by the mode prescribed under Clause (c) of Sub -section (1) of Section 37C of the Act. It is not even the case of respondent No. 2 that it had sought to effect service and had effected service in any of the modes prescribed under Clause (b) and (c) of Sub- section (1) of Section 37C of the Act. In the circumstances, the averment made on oath by the petitioner that a copy of the order was not served on the petitioner, remains unrebutted.
10. We find fortified in our views from the above judgment in as much that, their lordships have clearly laid down that it is necessary for the authority to effect service by resorting to sub-sections of the Section 37C. This would mean that only delivering the order/decision/summon/notice in post for onward transmission by registered post is not sufficient proof of valid service.
11. In light of the above we answer the reference as under:
(a) Dispatch 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.
(b) The sections in themselves indicate that there cannot be any simultaneous affixing of the order on the notice board and the affixing of the order has to be considered after failure of the first two modes.
12. The reference is answered accordingly. All these appeals will now be placed before the concerned Division Bench for decision on merits in light of this judgment and in accordance with law.
13. Before parting with the case we would like place on record our appreciation for the assistance rendered by amicus curiae in this case.
(Pronounced on 28th August 2006)