CWP No.14658 of 2009 1 In the High Court of Punjab and Haryana, Chandigarh. CWP No.14658 of 2009 (O&M) Date of Decision: 19.05.2010 Commissioner, Central Excise Commissionerate, Ludhiana. ....Petitioner. Versus M/s. Mohan Bottling Co. (P) Ltd, Ludhiana ....Respondents. Coram:- Hon'ble Mr. Justice Adarsh Kumar Goel Hon'ble Mr. Justice Alok Singh 1.Whether reporters of local news papers may be allowed to see judgement ? 2. To be referred to reporters or not ? 3. Whether the judgement should be reported in the Digest ? Present: Mr. Gurpreet Singh, Advocate for the petitioner. Mr. D.S. Patwalia, Advocate for the respondent. ... Alok Singh, J. 1. By way of present writ petition filed under Articles 226/227 of the Constitution of India, petitioner is assailing order dated 28.8.2006 (Annexure P-2) passed by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT ) Principal Bench, New Delhi. 2. Brief facts of the present case are that M/s. Mohan Bottling Co. engaged in the manufacture of aerated water falling under the head No.22.01 and 22.02 of the Schedule to the Central Excise Tariff Act, 1985. Respondent had failed to include a total sum of Rs.1,16,35,433/- (transportation charges Rs.1,10,58,729/- and notional interest on deposits of CWP No.14658 of 2009 2 Rs.5,76,704/-) in the assessable value of aerated waters cleared during the period 1.3.1994 to 31.8.19997 in contravention of Section 4 of the Central Excise Act, 1944 (hereinafter referred to as he 1944 Act). Respondent was issued show cause notice for recovery of short paid duty alongwith interest and penal action against him; the Commissioner, Central Excise Commissionerate, Chandigarh-I confirmed the demand of duty of Rs.71,65,816/- and also imposed equal penalty on the respondent vide order No.160-167/CE/98/859 dated 1.2.1999, which was despatched to the respondent through registered post. Respondent challenged the order dated 1.2.1999 by way of appeal before the CESTAT. Preliminary objection was raised by the Revenue that appeal before the Tribunal is barred by time. Assessee submitted before the Tribunal that limitation for filing the appeal would commence from the date order is actually/physically served. Question then arose as to whether as per Section 37C of the Act, order is to be physically served or sending the order through registered post at the correct address of the assessee is sufficient compliance. Reference was made to the Larger Bench of the Tribunal. Larger Bench of the Tribunal vide impugned order dated 28.8.2006 replied the reference on the ground that despatch 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. Order of the Appellate Tribunal is under challenge before us in the writ petition. 3. We have heard learned counsel for the parties and perused the record. 4. Learned counsel for the petitioner argued that as per Section 37C of the 1944 Act, despatching decision, order, summon or notice by CWP No.14658 of 2009 3 registered post with Acknowledge Due, is sufficient compliance without actual proof of delivery. Order was despatched by registered post and envelop containing the order was properly addressed. 5. Section 37C of the 1944 Act reads as under:- “37C. Service of decisions, orders, summons, etc.- (1) Any decision or order passed or any summons or notice 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 acknowledgment due, to the person for whom it is intended or his authorised 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 CWP No.14658 of 2009 4 copy thereof is affixed in the manner provided in sub-section (1).” 6. From the perusal of sub-section (2) of Section 37C of the 1944 Act, we have no hesitation to hold that the envelop containing the order was despatched under Registered A.D. Post on the correct address. Therefore, it shall be deemed to have been served on the date on which the letter is tendered or delivered by post or a copy thereof is affixed in the manner provided under sub-section (1) by affixing the same to some conspicuous part of the factory or warehouse or other place of business. In the present case, the assessee has not alleged even a single word that the envelop containing the order was not having the correct address. 7. The Apex in M.A. Mohammed Ismail Vs. State of Tamil Nadu, 1999 (10) JT 372, has held as under:- “Apart from Section 114 of the Indian Evidence Act under which a presumption would arise in respect of letters sent by registered post that they were delivered to the addressee if the address was correct, a presumption will also arise under Section 27 of the General Clauses Act, 1897 which provides as under: “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 or 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 CWP No.14658 of 2009 5 the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 8. The Apex Court in V. Raja Kumari Vs. P. Subbarama Naidu and another, AIR 2005 SC 109, in paras 13 and 14 has held as under:- “13. Here the notice is returned as addressee being not found and not as refused. Will there be any significant difference between the two so far as the presumption of service is concerned? In this connection a reference to Section 27 of the General Clauses Act, 1897 will be useful. The section reads thus: "27. Meaning of service by post.-Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of a 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, preparing 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." 14. No doubt Section 138 of the Act does not require that the notice should be given only by "post". Nonetheless the principle incorporated in Section 27 (quoted above) can profitably be imported in a case where the sender has CWP No.14658 of 2009 6 despatched the notice by post with the correct address written on it. Then it can be deemed to have been served on the sendee unless he proves that it was not really served and that he was not responsible for such non-service. Any other interpretation can lead to a very tenuous position as the drawer of the cheque who is liable to pay the amount would resort to the strategy of subterfuge by successfully avoiding the notice.” 9. We have carefully perused the judgements of the Apex Court in the matters of M.A. Mohammed Ismail's (supra) and in Raja Kumari (supra). We have also carefully examined Section 37C of the 1944 Act, Section 27 of the General Clauses Act and Section 144 of the Indian Evidence Act. ` Having examined, we are of the view that it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. It is for the assessee to rebut the presumption of service by cogent evidence that in fact order was never served upon him. In the present matter, assessee failed to discharge his burden and sending the order by registered post at the correct address is sufficient compliance. 10. Writ petition is allowed in the aforesaid terms. Order impugned dated 28.8.2006(Annexure P-2) is set aside. ( Alok Singh ) Judge ( Adarsh Kumar Goel ) 19.05.2010 Judge sk.