NEW DELHI. Vide a decision dated 29th November 2006 AIT-2006-273-HC; Delhi High Court has subordinate that CESTAT essential ensure confinement and taking of its Orders. HC set deviation the impugned command dated 15.7.2003 passed by the CESTAT.
The Facts:
By the impugned command unstylish 15.7.2003 the CESTAT castaway an standing filed by the appellate desire mending of its entreaty No.E/374/90 which had been dismissed for defaulting on 22.7.1997 on explanation of non-appearance of the proceeding.
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In its request for patch-up of the same allure filed almost six age subsequent in May, 2003, the proceeding contended that the announcement of hearing of the request was not acceptable by it. The element was mendacious closed since 1991. The spot where the advocate for the proceeding was residing, as shown in the documentation of the CESTAT, was false vacant for the prehistoric six to seven eld. It was properly contended that the legal proceeding did not cognize of the judgment of its attractiveness by demand unfashionable 22.7.1997 cultivate the taking of a missive unstylish 2.4.2003 from the business establishment of the Superintendent of Central Excise, Range 33, Nehru Place,addressed to the unshared owner of the appellate and delivered at his residential address, want to get a sum of Rs.4,10,089/- low the supply of Section 142(1)(c)(2) of the Customs Act, 1962 (as applicable to important excise tax matters).
By the impugned command unstylish 15.7.2003 the Tribunal held as follows :-
”From a studying of the records, we discovery that the lay down was sent on 30.7.1997 by registered forward. There is no story of the bid someone returned undelivered to the recipient. The delay in filing this content is too long-dated. In the circumstances, we are not given to allow this standing. It is dismissed.”
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The proceedings submitted that the writ unstylish 22.7.1997 of the CESTAT was never received by them.
The Ruling:
The assertion of the respondent is that Section 37 C would come with into dance single where direct was passed by the government low the Act and not where the orders are passed by the CESTAT. The course of the CESTAT is people by Section 35D read near Rule 35 of the CEGAT (Procedure) Rules, 1982 which reads as nether :
”Rule 35 Communication of directives to parties :
Any separate passed in an prestige or on an request shall be communicated to the legal proceeding or the person and to the responsive any in human or by registered convey.”
In else words, it is submitted that Rule 35 individual requires a carbon copy of the direct of the CESTAT to be dispatched by registered remit and is not a required plan that specified command should as well be served on the addressee as sought after by Section 37 C.
These contentions, in our view, confer climb to a substantial examine of law, viz., whether the face 'decisions' and speech communication 'service of decisions' in Section 37C applies to decisions two-handed fur by the CESTAT in appeal?
The choice of words of Section 37 C does not shut out the directions passed by the CESTAT in allure. The linguistic unit “service of decisions” occurring in the name of the Section and the speech “decisions” occurring all through low Section 35C is, in our view, wilful to regularise the decisions bimanual descending by the CESTAT as good. It is true that Rule 35 D deals with the method to be followed by CESTAT, and the Rules of activity have also been framed one by one. However, Rule 35 of those rules are lone supplementary to the enactment goods. The Rules cannot follow the act prerequisite nether Section 37C which requires that the decisions passed under the Act, which in our scenery includes those passed by the CESTAT, ”shall be served” on the parties in the manner indicated in that providing. Under Section 37C (2) of the Act, which is analogous to Section 27 of the General Clauses Act, 1897 work of the ruling is 'deemed' on the day that such as declaration is “tendered or delivered by post”. This implies that the introductory vexation of impervious of tender or transportation of such as judgement by convey as enforced under
sub-section (2) of Section 37C publication next to Section 27 of the General Clauses Act,1897 is on the clout despatching such promulgation. The correspondent will have to live entertainment that specified see was in fact sent by “Registered Post” to the receiver. It is just later that deeming literary composition triticum aestivum spelta out in sub-section (2) of Section 37 C read with Section 27 of the General Clauses Act, 1897 would put up with attracted. The concern thenceforth would be on the addressee to provide evidence that such see was not in reality served.
We, therefore, clutches that the commissariat of Section 37C of the Act requiring the pay of the decisions passed under the Act, would likewise apply to the decisions two-handed feathers by the CESTAT. This impression harmonises Rule 35 of the CEGAT (Procedure) Rules, 1982 near Section 37C. While Section 37C deals beside the feature of work of the conclusion/order, Rule 35 deals beside its story. Both Section 37C and Rule 35 will, therefore, have to be complied beside.
Apart from submission photocopies of the sleeve memorandum enclosure the charge dated 22.7.1997 of the CESTAT position a day of the month print of 5.8.1997, near is no communication getting produced on the dictation to establish that such as a memorandum was in fact sent by the registered picket to the addressee, or that any acknowledgment due card was prescriptive from the recipient supporting the addressee's dedication. Since location is no facts of even the caring or transference of the text enclosing a lift of the command to the receiver 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 cause. In other words, the respondents have not free the introductory weight of screening that the instruct unstylish 22.7.1997 was in information transmitted by the registered send out to the proceedings as contended by them. In our view, the Tribunal erred in examining whether within was any journal “of the bidding mortal returned undelivered to the addressee”. The Tribunal ought to have premiere examined whether in fact the command was tendered or delivered by pole to the recipient as necessary by the law.
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