The Allahabad Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that in the absence of proof of delivery as mandated under Section 37C of the Central Excise Act, 1944, an appeal cannot be dismissed as time-barred merely on the presumption of service. The Tribunal ruled that mere dispatch of an order by Speed Post is insufficient unless the Department is able to establish proof of delivery in accordance with statutory requirements.
The appeal arose from Order-in-Appeal dated 28 May 2025, whereby the Commissioner (Appeals) rejected the assessee’s appeal as barred by limitation under Section 35 of the Central Excise Act, 1944. The limitation provision requires an appeal to be filed within sixty days from the date of communication of the order.
The assessee contended that the Order-in-Original dated 14 March 2024 was never served upon him. According to the appellant, a certified copy of the order was provided only on 9 August 2024 upon specific request, and the appeal was thereafter filed on 19 September 2024—well within sixty days from the date of communication. It was submitted that there was no material on record to establish earlier service of the order.
The Department argued that the Order-in-Original had been dispatched through Speed Post and since it was not returned undelivered, it should be presumed to have been served. The Commissioner (Appeals) accepted this presumption and dismissed the appeal as time-barred.
The Tribunal framed the short issue as whether the appeal had been filed within the prescribed period of limitation under Section 35, which begins from the “date of communication” of the decision or order. In examining this question, the Bench referred to Section 37C of the Central Excise Act, 1944, which prescribes the mandatory manner in which decisions, orders, summons and notices are to be served.
Section 37C(1)(a) requires service by tendering the order or by sending it through registered post with acknowledgment due, Speed Post with proof of delivery, or approved courier. The Tribunal emphasized that the initial burden lies upon the Revenue to demonstrate that service was effected strictly in the manner prescribed. Only once such burden is discharged does the onus shift to the assessee.
In the present case, the Department failed to produce any acknowledgment card, tracking report evidencing delivery, or any other proof demonstrating that the order dated 14 March 2024 was delivered to the appellant prior to 9 August 2024. The Tribunal observed that mere dispatch, coupled with non-return of the postal article, does not satisfy the statutory mandate.
Relying on the judgment of the Supreme Court in Saral Wire Craft Pvt. Ltd. v. Commissioner of Customs, Central Excise & Service Tax, the Tribunal reiterated that when a statute prescribes a specific mode of service, it must be followed strictly. The Apex Court had categorically held that service must be effected on the concerned person or his authorized agent, and failure to comply with the statutory procedure would vitiate the presumption of service.
The Tribunal found that the Commissioner (Appeals) erred in presuming service without proof of delivery as required under Section 37C. In the absence of such proof, the presumption of valid service was held to be unsustainable. Accepting the assessee’s contention, the Tribunal held that the date of communication must be taken as 9 August 2024, when the copy of the order was admittedly supplied. Consequently, the appeal filed on 19 September 2024 was within the statutory period of sixty days.
The impugned order was accordingly set aside. The matter was remanded to the Commissioner (Appeals) for adjudication on merits, without revisiting the issue of limitation. All issues were kept open for consideration, and the appellant was directed to cooperate in the remand proceedings without seeking unnecessary adjournments. The appeal was thus allowed by way of remand.
Cause Title: M/s Jagmandeep Singh Versus Commissioner, CGST, Noida
