P.G. Chacko, Member (J)

1. After examining the records and hearing both sides, note that, in adjudication of a show cause notice, the original authority had disallowed Cenvat credit amounting to Rs. 2,81,491/- to the assessee (present appellant) and had imposed equal amount of penalty on them. The said authority had also imposed a separate penalty of Rs. 5,000/- on the assessee under Rule 27 of Cenvat Credit Rules, 2002. The order of adjudication was passed on 8-2-2005, against which the party filed an appeal with the Commissioner (Appeals) on 30-8-2005. That appeal was obviously beyond the period of limitation prescribed under Section 35 of the Central Excise Act and even beyond the condonable period of delay of 30 days prescribed under the said provision. The Commissioner (Appeals), on this basis, dismissed the appeal as time-barred. Hence, the present appeal.

2. Heard both sides. The 1d. counsel for the appellant submits that, a copy of the Order-in-Original was received by them only on 24-8-05 and that, the appeal filed with the Commissioner (Appeals) was within the period of limitation prescribed under Section 35 of the Act. On the other hand, the 1d. D.R. submits that the order of adjudication was served on the party on 11-2-05 as evidenced by the postal acknowledgement card available at page 52 of the paper book. In his rejoinder, the 1d. counsel submits that the Order-in-Original which was allegedly served on 11-2-05 was not received by any person authorized by the company. According to him, the burden is on the department to show that the order was served on an authorized person or an agent of the company. In this connection, the counsel has claimed support from the Honble Allahabad High Courts judgment in R.K. Agarwal v. CESTAT, New Delhi 2008 (221) E.L.T. 486 (All.). He has also relied on the decision in Matigara Rolling Mills (P) Ltd. v. Commissioner of C.Ex., Siliguri : 2006 (193) E.L.T. 132 (Cal.) : 2007 (7) S.T.R. 363 (Tribunal). Both sides have referred to the provisions of Section 37C of the Central Excise Act. The D.R. has relied on the decision in Mohammed Saleem v. CC, Calicut 2007 (219) E.L.T. 698 (Tri. -Chennai) also.

3. I have given careful consideration to the submissions. The relevant provision governing service of orders on an affected person is Section 37C ibid. According to this provision, any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served 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 authorized agent, if any. In case of any situation whereunder, the service of decision, order, summons cannot be done in the above manner. Section 37C provides for alternative procedure, which, however, is not relevant to this case. The question is whether, the Order-in-Original passed by the Dy. Commissioner in the present case, was served on the appellant and, if so, when According to the appellant, it was served on them only on 24-8-05. According to the department, it was served on the appellant on 11-2-2005, as evidenced by the postal acknowledgement card. The postal acknowledgement card indicates that the postal article containing the Order-in-Original was served on a person who purported to represent the company. The 1d. counsel has claimed that such person was not authorized. In answer to a query from the Bench, he submits that three other persons had been authorized during the material period to sign documents to be submitted to the Central Excise department, to submit such documents to the department and also to receive documents from the department. In this connection, he has referred to an affidavit of the Managing Director of the company, wherein, the Managing Director named three persons and declared that such persons had been authorized during 2004-05 to sign documents, to submit the same to the Central Excise department and to receive documents from the Central Excise department. The affidavit further says that the said persons were no longer in the service of the company. The affidavit is just a declaration, that certain persons had been authorized by the company. It is silent on who authorized the said persons to perform the functions mentioned in the affidavit, and on the strength of what legal document, nor is the affidavit accompanied by any Resolution of the Board of Directors, authorizing the Managing Director to appoint persons in the above behalf or authorizing the aforesaid three persons to discharge the functions referred to in the affidavit.

4. There is a presumption under Section 114(e) of the Evidence Act, that public proceedings have been regularly and lawfully performed. Such a presumption is available in respect of the postal acknowledgement card, which indicates that a copy of the Order-in-Original had been served on an agent of the company. It, of course, is a rebuttable presumption. In this case, it has not been successfully rebutted. In the scenario, it has to be held that a copy of the Order-in-Original was received by the appellant-company on 11-2-05. The appeal filed by them on 30-8-05 was hopelessly delayed. It was delayed even beyond the condonable period of delay prescribed under Section 35 of the Central Excise Act. The lower appellate authority had no power to condone such delay. His order has only to be sustained. It is ordered accordingly.

5. The case law cited by the 1d. counsel cannot be applied to the facts of this case. Certain decisions with regard to Section 153 of the Customs Act have been cited by the D.R. On this basis, he has argued that, whether under Section 153 of the Customs Act or under Section 37C of the Central Excise Act, it is enough for the department to show that the appealable order was dispatched by registered post to the party concerned. It has been argued that, even if the postal article is returned undelivered, the presumption of service would subsist. In this connection, the D.R. has placed emphasis on S.A. Plywood Industries v. CCE, Siliguri : 2008 (230) E.L.T. 329 (Tri. - Kolkata), wherein, it was held that, by dispatching the adjudication order by speed post, the Revenue, fulfilled the requirement of Section 37C(2) of Central Excise Act, and that the order should be deemed to have been served on the person intended. On the basis of the case law cited by the D.R. and the specific provisions of Section 37C of the Central Excise Act, the only conclusion which can be reached in this case is that, a copy of the adjudication order was served by the department on the appellant on 11-2-05 in terms of Section 37C.

6. In the result, the order of Commissioner (Appeals) is sustained and this appeal is dismissed.

(Pronounced in court)