COMMISSIONER Vs. MOHAN BOTTLING CO P LTD

JUDGEMENT

(1.) By way of present writ petition filed under of the Constitution of India, petitioner is assailing order dated 28.8.2006 (Annexure P-2) passed by the Customs, Excise & Service Tax Appellate Tribunal (CES-TAT ) Principal Bench, New Delhi.

(2.) Brief facts of the present case are that M/s. Mohan Bottling Co. engaged in the manufacture of aerated water falling under the head No. 22.01 and 22.02 of the Schedule to the Central Excise Tariff Act, 1985. Respondent had failed to include a total sum of Rs. 1,16,35,433/- (transportation charges Rs. 1,10,58,729/- and notional interest on deposits of Rs. 5,76,704/-) in the assessable value of aerated waters cleared during the period 1.3.1994 to 31.8.19997 in contravention of Section 4 of the Central Excise Act, 1944 (hereinafter referred to as he 1944 Act). Respondent was issued show cause notice for recovery of short paid duty alongwith interest and penal action against him; the Commissioner, Central Excise Commissionerate, Chandigarh-I confirmed the demand of duty of Rs. 71,65,816/- and also imposed equal penalty on the respondent vide order No. 160-167/CE/98/859 dated 1.2.1999, which was despatched to the respondent through registered post. Respondent challenged the order dated 1.2.1999 by way of appeal before the CESTAT. Preliminary objection was raised by the Revenue that appeal before the Tribunal is barred by time, Assessee submitted before the Tribunal that limitation for filing the appeal would commence from the date order is actually/physically served. Question then arose as to whether as per Section 37C of the Act, order is to be physically served or sending the order through registered post at the correct address of the assessee is sufficient compliance. Reference was made to the Larger Bench of the Tribunal. Larger Bench of the Tribunal vide impugned order dated 28.8.2006 replied the reference on the ground that despatch of adjudication order by speed post/registered post would not amount to a valid service in the absence of proof of actual delivery of speed post. Order of the Appellate Tribunal is under challenge before us in the writ petition.

(3.) We have heard learned Counsel for the parties and perused the record.