OIO Service On Assessee Not Complete If Dept. Fails To Prove Service: CESTAT

The Allahabad Bench of Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that in the absence of proof of delivery under Section 37C of the Central Excise Act, 1944, the appeal could not be dismissed on limitation. The bench of P.K. Choudhary (Judicial Member) has observed that it was incumbent upon the department to produce evidence of delivery or service which is the mandate as per the Section 37C(1)(a) of the Excise Act. In absence of proof of delivery of Order dated 14.03.2024, the same cannot be deemed as served on the Appellant. The appellant had challenged Order-in-Appeal dated 28 May 2025, whereby the Commissioner (Appeals) rejected the appeal on the ground that it was filed beyond the statutory limitation period prescribed under Section 35 of the Central Excise Act, 1944. The assessee contended that the Order-in-Original dated 14 March 2024 was never served upon him. According to the appellant, a copy of the order was provided only on 9 August 2024 upon request, and the appeal was subsequently filed on 19 September 2024—well within the statutory period of 60 days from the date of communication. The Department, however, maintained that the Order-in-Original had been dispatched by Speed Post, and since it was not returned undelivered, it should be presumed to have been served. The Tribunal framed the short controversy as whether the appeal was filed within the limitation period prescribed under Section 35, which mandates filing within 60 days from the date of communication of the order. In examining the issue, the Tribunal referred to Section 37C of the Central Excise Act, 1944, which lays down the mandatory procedure for service of decisions, orders, summons, or notices. The provision requires that service be effected through registered post with acknowledgment due, speed post with proof of delivery, or approved courier. The Tribunal emphasized that the initial burden lies on the Revenue to demonstrate proper service in accordance with Section 37C(1)(a). Only after such burden is discharged does the onus shift to the assessee. In the present case, no proof of delivery or acknowledgment was produced by the Department. The Commissioner (Appeals) had proceeded on the presumption that since the order was dispatched and not returned, it stood served. The Tribunal relied on the landmark judgment of the Supreme Court of India in Saral Wire Craft Pvt. Ltd. v. Commissioner of Customs, Central Excise & Service Tax, where it was held that if a statute prescribes a specific manner of service, it must be followed strictly. Quoting the Supreme Court, the Tribunal reiterated that service must be effected on the concerned person or his authorized agent and that mere dispatch is insufficient without proof of delivery. The Apex Court had categorically ruled that failure to comply with statutory requirements of service results in miscarriage of justice. The CESTAT observed that there was no evidence on record showing that the Order-in-Original dated 14 March 2024 had been delivered to the appellant prior to 9 August 2024. The Department failed to produce proof of delivery as mandated under Section 37C. The Commissioner (Appeals) erred in presuming service merely on the basis of dispatch and non-return of the postal article. Holding that the presumption of service was unsustainable in the absence of proof of delivery, the Tribunal accepted 9 August 2024 as the date of communication, as claimed by the assessee. Accordingly, the appeal filed on 19 September 2024 was held to be within the statutory limitation period. Setting aside the impugned order, the Tribunal remanded the matter to the Commissioner (Appeals) for adjudication on merits without revisiting the question of limitation. All issues were kept open for consideration. The appellant was also directed to cooperate in the remand proceedings and avoid unnecessary adjournments. Case Details Case Title: M/s Jagmandeep Singh Versus Commissioner, CGST, Noida Citation: JURISHOUR-30-CESTAT-2026(All) Case No.: Service Tax Appeal No.70043 of 2026 Date: 18.02.2026 Counsel For Appellant: A letter Counsel For Respondent: Santosh Kumar Click Here To Read Order Read More: No Customs Duty Demand Without DGFT Cancellation of FPS Scrips: CESTAT

OIO Service On Assessee Not Complete If Dept. Fails To Prove Service: CESTAT

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