D.N.PATEL,J. - (1.) This writ petition has been preferred by this petitioner being aggrieved and feeling dissatisfied with by an order passed by Customs, Excise and Service Tax Appellate Tribunal, Kolkata, in M.A. No. 75215 of 2015 order dated 15th September, 2015, whereby, the delay condonation application preferred by this petitioner in Appeal No. EA-75295 of 2015, was rejected. Thus, the delay was not condoned by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, and, hence, the present writ petition has been preferred mainly on the ground that the Order-in-Appeal dated 10th April, 2012 was received on 05.01.2015. It is also submitted by the counsel for the petitioner that from paragraph 10 onwards of the delay condonation application preferred before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, it appears that since long the order was not received and, hence, advocate of this petitioner has written more than one letters to the Commissioner (Appeals). Later on, it was conveyed that the order was sent by speed post. It is further submitted by the counsel for the petitioner that as per section 37C of the Central Excise Act, 1944, order passed by the appellate authority dated 10th April, 2012, ought to have been sent by registered post with A/D. The new amendment in this Section came into effect from 10th May, 2013, which is not applicable to the facts and circumstances of the present case. This aspect of the matter has not been properly appreciated by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, while dismissing the delay condonation application vide order dated 15th September, 2015 (Annexure 11 to the memo of this writ petition). Hence, the same deserves to be quashed and set aside.
(2.) Counsel for the respondents submitted that no error has been committed by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata in deciding the delay condonation application mainly for the reason that this petitioner attended the hearing in 2012 and, thereafter, he has not enquired anything from the appellate authority. Moreover, the Order-in-Appeal passed by the Commissioner (Appeals), Ranchi dated 10th April, 2012 was sent by speed post. This aspect of the matter has been properly appreciated by Customs, Excise and Service Tax Appellate Tribunal, Kolkata, while dismissing the delay condonation application. Hence, this writ petition may not be entertained by this Court. Reasons:-
(3.) Having heard learned counsels for both sides and looking to the facts and circumstances of the case, we, hereby, quash and set aside the order passed by Customs, Excise and Service Tax Appellate Tribunal, Kolkata in M.A. No. 75215 of 2015 in Appeal No. EA-75295 of 2015 order dated 15th September, 2015 (Annexure 11), mainly for the following facts and reasons:- (i) It appears from the facts of the case that the Order-in-Appeal was passed on 10th April, 2012 by Commissioner (Appeals), Ranchi (Annexure 9). The order was received by this petitioner for a considerably longer period and, hence, advocate of this petitioner has written more than one letters, as mentioned in paragraph 9 onwards of delay condonation application - M.A. No. 75215 of 2015. (ii) It further appears that thereafter, reply was given by the Commissioner (Appeals), Ranchi that Order-in-Appeal was already sent by speed post to this petitioner. (iii) section 37C of the Central Excise Act, 1944 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 acknowledgement 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 by 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 copy thereof is affixed in the manner provided in sub-section (1)." (iv) In view of the aforesaid provision, the order passed by the Commissioner (Appeals), Ranchi ought to have been sent by registered posed with A/D. The new amendment brought into force from 10th May, 2013, which is applicable to the facts of the present case. (v) It further appears from the facts of the case that the Order-in-Appeal was received by this petitioner on 5th January, 2015 and the appeal was preferred on 19th March, 2015, which is within the period of limitation as prescribed under section 35B of the Central Excise Act, 1944. These aspects of the matter have not been properly appreciated by the Customs, Excise and Service Tax Appellate Tribunal, Kolkata, while deciding M.A. No. 75215 of 2015 by an order dated 15th September, 2015. (vi) Though affidavit has been filed in this case by the respondents, the so-called receipt of the Order-in-Appeal has not been annexed by the respondents, which they are alleging that the respondents have sent by speed post. Thus, in absence of any receipt signed by this petitioner, we are not accepting this contention raised by the counsel for the respondents that Order-in-Appeal was received by this petitioner much earlier in point of time. Thus, there is no delay in preferring the appeal before the Customs, Excise and Service Tax Appellate Tribunal, Kolkata by this petitioner. It appears that over-cautious petitioner has preferred delay condonation application, otherwise, the Order-in-Appeal was received on 5th January, 2015 and the appeal was preferred on 19th March, 2015, which was well within the time limit prescribed under section 35B of the Central Excise Act, 1944.;