CX - Burden to rebut presumption lies on party challenging factum of service - Once appellant has not removed objections within reasonable period of their being deemed served, memo of appeal is rightly rejected being barred by limitation: HC
By TIOL News Service
CHANDIGARH, JAN 23, 2013: AN application for condonation of delay of six years was dismissed by the CESTAT and, therefore, the appellant is before the High Court.
Following substantial questions of law were raised: -
++ Whether the impugned order is perverse and contrary to the record?
++Whether the learned Tribunal was justified to dismiss the application for condonation of delay and main appeal when there is no delay in filing the appeal and there is no prescribed period of refilling the appeal?
++ Whether the Tribunal could dismiss the appeal when defect memos were returned back to the registry?
An order was passed by the adjudicating authority on 28.02.2004 confirming the demand of Rs. 54,348/- and also imposing equivalent penalty. An appeal against the said order was dismissed on 23.3.2005 for the reason that the appellant failed to comply with the condition of pre-deposit in terms of s. 35F of the CEA, 1944.
The appellant filed an appeal before the CESTAT which was returned three times with defect memos dated 22.3.2005, 30.6.2005 and 22.9.2005.
The appellant, thereafter, filed an appeal along with an application for condonation of delay. It is the said application, which has been declined by the Tribunal vide the order impugned in the present appeal.
The appellant submitted that the defect memos were not received by the appellant and as such defects memos remained un-delivered. Therefore, once the memo of appeal was filed within a period of limitation, the non-communication of defect memo will not lead to delay, requiring condonation, which may require even any application for condonation.
In support, the provisions of s. 37C of the CEA, 1944 is relied upon and so also the decision in Amidev Agro Care Pvt. Ltd. (2012-TIOL-395-HC-MUM-CX).
The High Court observed -
“9. We have heard learned counsel for the appellant but find no merit in the present appeal. The appellant has filed memo of appeal disclosing an address. The defect memos were sent under registered A.D. post on the addresses so given. Once, the letter has been sent under registered A.D. post, the same is presumed to be delivered in terms of Section 27 of the General Clauses Act 1897. Reference may be made to the judgment of Hon'ble the Supreme Court reported as (1981) 2 SCC 534, Harcharan Singh v. Shivrani , wherein it has been held that -
"x x x"
11. Clauses (b) and (c) of Sub Section (1) of Section 37-C has no applicability to the facts of the present case in as much Sub Section (1) (a) contemplates that the notices issued under the Act shall be served by tendering the notice by registered post to the person intended or its authorized agent with acknowledgment due. Sub Clause (b) and (c) would be applicable in the event notice cannot be served in terms of Sub Clause (a).
12. The notices of the defect memos were sent by registered post on the addresses mentioned by the appellant in the memo of appeal. Therefore, the notice of defect memo sent to the appellant by registered post is deemed to be served in terms of Section 37C(1) (a) of the Act read with Section 27 of the General Clauses Act. Once, the appellant has not removed the objections within a reasonable period of the defective memo of appeals, the memorandum of appeal has been rightly rejected being barred by limitation. The appeal is thus beyond the period of limitation.”
Noting that the appellant had taken more than six years to remove the defects in the appeal, the High Court held that order of the Tribunal did not raise any substantial question of law. In fine, it was held that the conduct of the appellant during the last 8 years did not make out any case for any indulgence in law or equity and accordingly the appeal was dismissed.
(See 2013-TIOL-53-HC-P&H-CX)
