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June 2013

Appeal to Tribunal – Defect Memos sent under registered post acknowledgement due to address given in Memorandum of appeal : General Clauses Act, 1897 – Section 27

By Dr. K. Shivaram, Ajay R. Singh, Advocates
Reading Time 1 mins
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By an order dated 28th February, 2004, the adjudicating authority confirmed the demand of excise duty and imposed penalty of equivalent amount. The appeal filed against that order was dismissed on 23rd March, 2005 on the ground that the assessee failed to comply with the condition of pre-deposit in terms of section 35F of the Central Excise Act, 1944. The appeal filed by the assessee was returned thrice with defect memos. Thereafter, the assessee filed the appeal with an application for condonation of delay which was dismissed by the Appellate Tribunal.

On further appeal, it was observed that the defect memos were sent under registered post acknowledgement due to the address given in the memorandum of appeal. Once the letter had been sent under registered post acknowledgement due, it was presumed to be delivered/served in terms of section 27 of the General Clauses Act, 1897 and in terms of section 37C(1)(a) of the Central Excise Act, 1944. Since the assessee had taken more than six years to remove the defect and had not removed the objections within a reasonable time, the appeal was rightly rejected as being barred by limitation.

Lakshmi Printing Co. vs. CCE (2013) 18 GSTR 413 (P&H)

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