NEW DELHI. Vide a ordinance dated 29th November 2006 AIT-2006-273-HC; Delhi High Court has subordinate that CESTAT must assure transfer and receiving of its Orders. HC set detour the impugned establish unfashionable 15.7.2003 passed by the CESTAT.
By the impugned direct unstylish 15.7.2003 the CESTAT castaway an petition filed by the proceeding desire mending of its petition No.E/374/90 which had been dismissed for absence on 22.7.1997 on portrayal of non-appearance of the proceedings.Post ads:
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In its petition for renovation of the aforesaid request filed well-nigh six time of life subsequently in May, 2003, the appellate contended that the see of hearing of the ask was not received by it. The unit was lying sealed since 1991. The forte where the exponent for the legal proceeding was residing, as shown in the paperwork of the CESTAT, was untruthful untenanted for the bygone six to 7 geezerhood. It was appropriately contended that the proceeding did not know of the firing of its beg by lay down unstylish 22.7.1997 boulder clay the taking of a missive unstylish 2.4.2003 from the place of business of the Superintendent of Central Excise, Range 33, Nehru Place,addressed to the inimitable businessman of the appellate and delivered at his residential address, want to acquire a sum of Rs.4,10,089/- beneath the provision of Section 142(1)(c)(2) of the Customs Act, 1962 (as applicable to inner excise tax matters).
By the impugned command unfashionable 15.7.2003 the Tribunal command as follows :-
From a perusing of the records, we discovery that the instruct was dispatched on 30.7.1997 by registered mail. There is no history of the writ someone returned undelivered to the addressee. The wait in filing this request is too lasting. In the circumstances, we are not fond to allow this submission. It is fired.Post ads:
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The proceeding submitted that the demand unstylish 22.7.1997 of the CESTAT was ne'er accepted by them.
The contention of the answering is that Section 37 C would come up into cavort one and only where on earth command was passed by the polity beneath the Act and not where the commands are passed by the CESTAT. The course of action of the CESTAT is citizenry by Section 35D publication near Rule 35 of the CEGAT (Procedure) Rules, 1982 which reads as low :
Rule 35 Communication of orders to parties :
Any some other passed in an plead or on an candidature shall be communicated to the proceeding or the petitioner and to the responsive any in individual or by registered dispatch.
In opposite words, it is submitted that Rule 35 just requires a model of the command of the CESTAT to be sent by registered transmit and is not a mandatory demand that such proclaim should also be served on the addressee as needed by Section 37 C.
These contentions, in our view, supply rocket to a extensive cross-examine of law, viz., whether the exhibition 'decisions' and speech communication 'service of decisions' in Section 37C applies to decisions handed fuzz by the CESTAT in appeal?
The choice of words of Section 37 C does not leave out the orders passed by the CESTAT in prayer. The language unit service of decisions occurring in the header of the Section and the expression decisions occurring through low Section 35C is, in our view, supposed to determine the decisions two-handed fluff by the CESTAT as economically. It is factual that Rule 35 D deals with the means to be followed by CESTAT, and the Rules of route have too been framed autonomously. However, Rule 35 of those rules are only supplementary to the enactment victuals. The Rules cannot follow the enactment order underneath Section 37C which requires that the decisions passed underneath the Act, which in our judgment includes those passed by the CESTAT, shall be served on the parties in the attitude indicated in that supply. Under Section 37C (2) of the Act, which is matching to Section 27 of the General Clauses Act, 1897 feature of the determination is 'deemed' on the date that such decision is tendered or delivered by post. This implies that the opening nuisance of data of soft or bringing of such as declaration by picket as necessary under
sub-section (2) of Section 37C publication near Section 27 of the General Clauses Act,1897 is on the rule despatching such notice. The sender will have to verify that specified become aware of was in fact conveyed by Registered Post to the recipient. It is simply consequently that deeming literary work spelt out in sub-section (2) of Section 37 C read with Section 27 of the General Clauses Act, 1897 would endure attracted. The hamper thenceforth would be on the receiver to show signs of that such as perceive was not in fact served.
We, therefore, surround that the provisions of Section 37C of the Act requiring the service of the decisions passed lower than the Act, would besides utilise to the decisions handed thrown by the CESTAT. This understanding harmonises Rule 35 of the CEGAT (Procedure) Rules, 1982 beside Section 37C. While Section 37C deals next to the characteristic of provision of the verdict/order, Rule 35 deals beside its news report. Both Section 37C and Rule 35 will, therefore, have to be complied with.
Apart from filing photocopies of the cover notification intromission the bidding unstylish 22.7.1997 of the CESTAT pose a day postage of 5.8.1997, within is no communicating unloading produced on the transcription to gala that such a missive was in information transmitted by the registered stake to the addressee, or that any acknowledgment due paper was standard from the receiver bearing the addressee's name. Since at hand is no impervious of even the tender or transfer of the epistle introduction a steal of the command to the addressee by post, the deeming literary work in sub-section (2) of Section 37 C read next to Section 27 of the General Clauses Act, 1897 is not attracted in the modern proceedings. In else words, the respondents have not discharged the initial encumber of display that the command dated 22.7.1997 was in reality sent by the registered situation to the appellate as contended by them. In our view, the Tribunal erred in examining whether at hand was any transcription of the command state returned undelivered to the addressee. The Tribunal ought to have preliminary examined whether in certainty the establish was tendered or delivered by convey to the receiver as sought by the law.