By TIOL News Service

ERNAKULAM, JUNE 16, 2014: IN this Writ Petition, the only grievance of the petitioner is that they are not in receipt of the Order passed by the adjudicating authority and, therefore, they are unable to seek appellate remedy.

The counsel for the Revenue submitted that the order was sent by post to the place of business, supplied by the petitioner and since the same was returned un-served, the Department had no further obligation in the matter, in view of the Supreme Court decision in M/s. Madan & Co. v. WazirJaivir Chand [AIR 1989 SC 630] where it is held that notice sent through registered post was sufficient compliance.

The High Court observed -

“…The grievance projected by the petitioner is to be looked into on an analysis of the totality of the circumstances coming to fore. Section 83 of the Finance Act, 1994 contemplates that certain provisions of the Central Excise Act, 1944 would apply to that Act. Section 37C of the Central Excise Act deals with service of decisions, orders, summons, etc. Looking at Section 37C, one of the modes of service is registered post with acknowledgement due. There is no dispute that the Department had attempted service by that mode and if the Section provided only that, then the decision of the Hon'ble Supreme Court would squarely apply. However, the provision specifically took into account the instances where service could not be effected as provided in clause (a); by clause (b), which mandates affixing a copy of the order, summons or notice on some conspicuous part of the place of business. This procedure admittedly has not been followed by the Department.”

The Writ Petition was allowed with a direction to the respondent department to serve a copy of the order and give a reasonable time to the petitioner for filing the appeal along with an application for condonation of delay and in the circumstances also stayed the recovery proceeding for two months.

(See 2014-TIOL-969-HC-KERALA-ST)