DEBANGSU BASAK,J. - (1.) The Court :- Three orders passed by the authorities are under challenge in the present writ petition. The first order is by the Appellate Authority dated March 28, 2007 by which the Appellate Authority had found the appeal to be barred by laws of limitation. The second order is the order under challenge is dated June 11, 2008 passed by the Customs Excise & Service Tax Appellate Tribunal ( CESTAT). The third order is the order dated June 12, 2009 passed by the CESTAT on an application for modification of its order dated June 11, 2008.
(2.) Learned Advocate for the petitioner submits that, the order in original passed by the authorities was not served upon the petitioner. He submits that, consequently the petitioner could not file the appeal within the statutory period. The order in original is dated March 18, 2004. The petitioner had written a letter to the authorities for the copy of the order in original on December 13, 2004. He refers to the counter affidavit filed by the Department before the CESTAT and submits that, the Department admits a copy of the order in original was made over to the petitioner on December 20, 2004. He submits that, the Department has failed to establish that, the order in original dated March 18, 2004 was served upon the petitioner prior to December 20, 2004. There is no reason for the department to serve the second copy of the order in original when the first copy of the order in original was served upon the petitioner. At least, there is no explanation to such effect in the affidavit filed by the Department before the CESTAT. Consequently, the date of commencement of limitation should be taken as December 20, 2004 and not March 18, 2004. Thus the appeal was within limitation. He refers to the impugned order of the Appellate Tribunal which according to him did not take into account the fact that, the order in original was served upon the petitioner only on December 20, 2004. On the contrary, the Appellate Authority had proceeded erroneously on the basis that the order in original was served upon the petitioner on March 18, 2004. There is no material to substantiate such a stand being taken in the impugned order passed by the Appellate Authorities and, therefore, it is erroneous and ought to be interfered. Moreover, he refers to Section 37C of the Central Excise Act 1944 and submits that, speed post was not a prescribed mode of service at the material point of time. Consequently, service of order in original by speed post prior to May 10, 2013 is not a valid service. The Department is required to act in terms of the statute or not at all. The Department did not serve the copy of the original through registered post with the acknowledgement due as mandated by statute. The question of commencement of period of limitation on March 18, 2004 cannot be taken into account, assuming that, the Department had served the assessee with the order in original by speed post on March 18, 2004. In support of the contention that, the service by speed post is not adequate service under Section 37C of the Act of 1944, he relies upon 2015 (325) ELT 313(Bom) (New Drug & Chemical Co. Vs. Union of India).
(3.) He refers to the second impugned order passed by the CESTAT and submits that, the CESTAT had taken into consideration a decision of the Division Bench of High Court while dealing with the appeal before it without affording an opportunity to the petitioner to deal with such High Court Judgement. Moreover, such judgment of the High Court was dealt with by a larger Bench of CESTAT which ought to have been taken into consideration by CESTAT. The larger Bench decision of the CESTAT is binding on CESTAT. It had erred in not following the larger Bench decision of CESTAT. He relies upon 2006(195) ELT 142 (SC) (Jayaswals Neco Ltd. Vs. Commissioner of Central Excise, Nagpur. 2002 (144) ELT 7 (SC) (Pradip Chandra Parija Vs. Pramod Ch. Patnaik), 2004(174) ELT 310 (SC) (Commissioner of Central Excise, Ahmedabad Vs. Ramesh Food Products) and 1990 (49) ELT 322 (SC) (Union of India Vs. Paras Laminates (P) Ltd.) in support of such contention.;