Arun Kumar Saha and Anr. Vs. Union of India and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/110304
CourtKolkata High Court
Decided OnJun-14-2017
JudgeDebangsu Basak
AppellantArun Kumar Saha and Anr.
RespondentUnion of India and Ors.
Excerpt:
order sheet wp no.668 of 2009 in the high court at calcutta constitutional writ jurisdiction original side arun kumar saha & anr. versus union of india & ors.before: the hon'ble justice debangsu basak date : 14th june, 2017. appearance: mr.r.k.chowdhury, adv.mr.protyush chatterjee, adv.for the petitioners.mr.somnath ganguli, adv.for the respondents. mr.shiv chandra prasad, adv.for the union of india. the court :- three orders passed by the authorities are under challenge in the present writ petition. the firs.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. 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 firs.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) elt313bom) (new drug & chemical co.versus union of india).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) elt142(sc) (jayaswals neco ltd.versus commissioner of central excise, nagpur. 2002 (144) elt7(sc) (pradip chandra parija versus pramod ch. patnaik).2004(174) elt310(sc) (commissioner of central excise, ahmedabad versus ramesh food products) and 1990 (49) elt322(sc) (union of india versus paras laminates (p) ltd.) in support of such contention. relying upon 2016 (344) elt168(raj) (r.p.casting pvt.ltd.versus cestat, new delhi).he submits that, no evidence being adduced by the department as to the service of the order in original upon the petitioner on march 18, 2004, three orders are required to be set aside with a direction upon the tribunal to decide in accordance with law. he draws the attention of the court to the fact that, the petitioner has complied with the initial order directing deposit of money as pre-condition. the petitioner has not withdrawn the amount deposited with the appellate authority till date. in reference to the proceedings undertaken by the authorities, he submits that, the petitioner is seriously prejudiced as the petitioner was not allowed to make submissions with regard to the division bench order referred to by the cestat. in its firs.order there is breach of principle of natural justice, so far as the petitioner is concerned. when there is an injustice to a party, the writ court is competent and empowered to employ suitable measures to ameliorate such injustices. learned advocate appearing for the department submits that, the order in original was sent by speed post instead of registered post. speed post is one of the methods under registered post. section 37c of the act of 1944 requires the assessee to be served with an order passed by the authority by a recorded mode of service. in the present case, he draws the attention of the court to page 82 of the petition, which is a counter affidavit of the department to the appeal filed by the petitioner before the cestat. evidence of dispatch was presented before the cestat. he submits that, the he also relies upon various other documents to show that, the department on march 18, 2004 itself had sent the order in original to the petitioner through speed post. he refers to the averments made in the counter affidavit filed before the cestat. the department had taken a stand that, the envelopes dispatched on march 18, 2004 to the petitioner were not returned to the department as ‘undelivered’. therefore, the presumption of service will apply. i have considered the rival contentions of the parties and the materials made available on record. the petitioner being aggrieved by an order in original dated march 18, 2004 had preferred an appeal therefrom. such appeal was rejected. in such appeal initially an order was passed directing the petitioner to deposit a sum of rs.10 lakhs as a precondition for entertaining the appeal. complied with such direction. the petitioner had the appeal was taken up for consideration on march 28, 2007. the same was rejected on the ground that, the appeal was barred by the laws of limitation. the petitioner had carried an appeal before the cestat. the appeal was disposed of by cestat on june 11, 2008 on merits without interfering with the order passed by the appellate authority. the petitioner had thereafter applied for correction of the so-called error apparent on the face of the order. such miscellaneous application was rejected by a second order of cestat impugned herein dated june 12, 2009. the petitioner has right of appeal against the two orders of cestat dated june 11, 2008 and june 12, 2009. the petitioner has chosen not to avail of the statutory remedy by way of appeal. the scope of a writ court and an appeal court in respect of an order passed by a statutory authority are different. a writ court can interfere if the petitioner substantiates that, there has been breach of principles of natural justice or that, the impugned order suffers from such perversity so as to shock the conscience of t
Judgment:

ORDER

SHEET WP No.668 of 2009 IN THE HIGH COURT AT CALCUTTA Constitutional Writ Jurisdiction ORIGINAL SIDE ARUN KUMAR SAHA & ANR.

Versus UNION OF INDIA & ORS.BEFORE: The Hon'ble JUSTICE DEBANGSU BASAK Date : 14th June, 2017.

Appearance: Mr.R.K.Chowdhury, Adv.Mr.Protyush Chatterjee, Adv.For the petitioneRs.Mr.Somnath Ganguli, Adv.For the respondents.

Mr.Shiv Chandra Prasad, Adv.For the Union of India.

The Court :- Three orders passed by the authorities are under challenge in the present writ petition.

The fiRs.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.

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 fiRs.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) ELT313Bom) (New Drug & Chemical Co.versus Union of India).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) ELT142(SC) (Jayaswals Neco LTD.versus Commissioner of Central Excise, Nagpur.

2002 (144) ELT7(SC) (Pradip Chandra Parija versus Pramod Ch.

Patnaik).2004(174) ELT310(SC) (Commissioner of Central Excise, Ahmedabad versus Ramesh Food Products) and 1990 (49) ELT322(SC) (Union of India versus Paras Laminates (P) Ltd.) in support of such contention.

Relying upon 2016 (344) ELT168(Raj) (R.P.Casting PVT.LTD.versus CESTAT, New Delhi).he submits that, no evidence being adduced by the Department as to the service of the order in original upon the petitioner on March 18, 2004, three orders are required to be set aside with a direction upon the Tribunal to decide in accordance with law.

He draws the attention of the Court to the fact that, the petitioner has complied with the initial order directing deposit of money as pre-condition.

The petitioner has not withdrawn the amount deposited with the Appellate Authority till date.

In reference to the proceedings undertaken by the authorities, he submits that, the petitioner is seriously prejudiced as the petitioner was not allowed to make submissions with regard to the Division Bench Order referred to by the CESTAT.

In its fiRs.order there is breach of principle of natural justice, so far as the petitioner is concerned.

When there is an injustice to a party, the writ court is competent and empowered to employ suitable measures to ameliorate such injustices.

Learned Advocate appearing for the Department submits that, the order in original was sent by speed post instead of registered post.

Speed Post is one of the methods under registered post.

Section 37C of the Act of 1944 requires the assessee to be served with an order passed by the authority by a recorded mode of service.

In the present case, he draws the attention of the Court to page 82 of the petition, which is a counter affidavit of the department to the appeal filed by the petitioner before the CESTAT.

evidence of dispatch was presented before the CESTAT.

He submits that, the He also relies upon various other documents to show that, the Department on March 18, 2004 itself had sent the order in original to the petitioner through speed post.

He refers to the averments made in the counter affidavit filed before the CESTAT.

The Department had taken a stand that, the envelopes dispatched on March 18, 2004 to the petitioner were not returned to the Department as ‘undelivered’.

Therefore, the presumption of service will apply.

I have considered the rival contentions of the parties and the materials made available on record.

The petitioner being aggrieved by an order in original dated March 18, 2004 had preferred an appeal therefrom.

Such appeal was rejected.

In such appeal initially an order was passed directing the petitioner to deposit a sum of Rs.10 lakhs as a precondition for entertaining the appeal.

complied with such direction.

The petitioner had The appeal was taken up for consideration on March 28, 2007.

The same was rejected on the ground that, the appeal was barred by the laws of limitation.

The petitioner had carried an appeal before the CESTAT.

The appeal was disposed of by CESTAT on June 11, 2008 on merits without interfering with the order passed by the Appellate Authority.

The petitioner had thereafter applied for correction of the so-called error apparent on the face of the order.

Such miscellaneous application was rejected by a second order of CESTAT impugned herein dated June 12, 2009.

The petitioner has right of appeal against the two orders of CESTAT dated June 11, 2008 and June 12, 2009.

The petitioner has chosen not to avail of the statutory remedy by way of appeal.

The scope of a writ Court and an appeal Court in respect of an order passed by a statutory authority are different.

A writ court can interfere if the petitioner substantiates that, there has been breach of principles of natural justice or that, the impugned order suffers from such perversity so as to shock the conscience of t