By TIOL News Service

CUTTACK, JAN 21, 2015: THE Commissioner(A) dismissed the appeal on the ground that it had been filed after 244 days beyond the prescribed time limit.

A further appeal was filed and the CESTAT while relying upon the judgment of the Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur - 2007-TIOL-231-SC-CX came to hold that "it has no authority nor power to condone the delay beyond 90 days" and accordingly dismissed the appeal.

Challenging the order passed by the Tribunal, the appellant filed a Writ application before the High Court.

It is submitted that the statute has provided for service of orders by "registered post" and sending the order by "speed post" was not in strict compliance of the law and hence, such notice served was in a manner not prescribed by law. Reliance is placed inter alia on the judgment in Amidev Agro Care Pvt. Ltd. Vs. Union of India - 2012-TIOL-395-HC-MUM-CX wherein it is held that sending of an order in a manner not provided under Section 37C amounts to no evidence of tendering of the decision to the assessee.

The High Court observed that the judgment(s) cited took no note of section 28 of the Indian Post Office Act, 1898 and the amendment brought into the Indian Post Office Rules, 1933, by a Gazette Notification issued by the Ministry of Communications (Department of Posts), Government of India dated 24th July, 1986 introducing "Inland, Speed Post Service" by inserting Rule 66-B, and, therefore the decisions were of no assistance. Inasmuch as in view of Section 28 of the Indian Post Office Act, 1898 read with Rule 66-B of Indian Post Office Rules, 1933, any postal article i.e. registered at the post office from which it is posted, and a receipt issued in respect of such article is to be treated as "registered post", the High Court observed.

The High Court further mentioned - "Both in the case of "registered post" as well as "speed post", the articles when delivered to the post offices, receipts thereof are required to be issued and consequently, both "speed post" and "registered post" satisfy the requirement of Section 28 of the Indian Post Office Act, 1898. The only difference between registered post and speed post if at all is the charges payable are normally higher for "speed post" as the name suggests the delivery of such articles at an early date."

In the matter of the submission made by the petitioner that Section 37C(1)(a) of the Central Excise Act, 1944 was amended w.e.f. 10.5.2013 and by such an amendment, "speed post" was added thereto to Section 37C and, therefore, such a legislative act, adding an additional mode of service, can only operate prospectively and not retrospectively, the High Court observed -

"9. We record the aforesaid contention merely to reject the same outright. It is well settled in law that where an amendment which is brought about is "clarificatory in nature", the same would date back to the date on which the original provision was introduced. No doubt, prior to the amendment on 10.5.2013, the word "registered post" found mentioned in Section 37(C) of the Central Excise Act. In view of Section 28 of the Indian Posts Office Act, 1898, we are of the considered view that both "registered post" as well as "speed post" would come within the fold of Section 28 of the Indian Post Office Act, since on delivery of the postal article, receipt thereof are issued by the Postal Department and consequently, the addition of the term "speed post" with amendment on 10.5.2013 is in our considered view, merely clarificatory and hence, retrospective in its operation."

On the amendment made in section 37C(1)(a) of the CEA, 1944, by the Finance Act, 2013 w.e.f. 10.5.2013, the High Court also added -

++ …On perusal of the aforesaid amended provision, it is clear that after the words "sending it by registered post with acknowledgment due" the words i.e. "or by speed post with proof of delivery" has been inserted. The aforesaid amendment itself would clearly shows that the amendment sought to be made is not only clarificatory in nature but also purely procedural for the purpose of communication of decisions/orders/summons to the parties.

++ …we are of the considered view that the insertion of the words "Speed Post" under Section 37C(1)(a) of the Central Excise Act, 1944 is clearly curative since various High Courts as quoted hereinabove had came to hold that "communication of notices through speed post was in consonance with law". Further this amendment is purely explanatory since Section 28 of Indian Post Office Act, 1988 read with Rule 66-B of the Indian Post Office Rules, 1993 (as amended on 24th July 1986). In our considered view, the insertion of "speed post" within the scope and ambit with the "registered post" as mandatory thereunder. Consequently, the amending statute is held by us as "clarificatory amendment" and would have retrospective effect and, therefore, the argument to the contrary by the …petitioner hereby stands rejected.

++ Considering the facts and circumstances of the present case, we are of the considered view that in the facts and circumstances, the explanation offered by the petitioner for the delay of 244 days and the attempt made to cover up the delay by raising another matter, i.e. "a disciplinary action initiated against a Class-IV employee", we are afraid that the same does not show sufficient cause and the causes shown for condonation are of no acceptable value.

The Writ application was dismissed.

(See 2015-TIOL-164-HC-ORISSA-ST)