Per. Rakesh Kumar :- The appellant are manufacturers of Pig Iron, Sponge Iron, MS Billet etc. chargeable to Central Excise Duty. Additional Commissioner, vide order-in-original dated 16/3/12 confirmed the Cenvat credit duty demand of Rs. 20,42,197/- against the appellant alongwith interest thereon under Section 11AB and imposed penalty of Rs. 20,42,197/- on them under Rule 15 of the Cenvat Credit Rules, 2004 readwith Section 11AC. This order dated 16/03/12, according to the Department, was sent to the appellant by speed post on 16/03/12. According to the appellant this order was not received by them and they came to know about the same only when they received notice on the same day i.e. on 16/03/12 from the Department directing them to deposit forthwith the duty of Rs. 20,42,197/- alongwith interest and also penalty of equal amount. The appellant, thereafter, on 13/04/12 wrote back to the Range Superintendent that the order referred to in the Range office letter dated 16/03/12 has not been received by them and requested him to provide a duplicate copy. There is no dispute that this letter was received in the Range office on 16/04/12. It appears that Xerox copy of the adjudication order was provided to the appellant only on 18/06/12, as is clear from the endorsement on the last page of the order-in-original. The appeal to Commissioner (Appeals) was filed by the appellant on 17/08/12. The Commissioner (Appeals) vide order-in-appeal dated 19/03/13 dismissed the appeal as time barred without going into the merits on the ground that the order would have been received by the appellant in March 2012 while the appeal has been filed by them on 17/08/12 and, as such, delay in filing of appeal is beyond 30 days which cannot be condoned. The matter travelled up to the Tribunal and the Tribunal vide final order dated 26/07/13 remanded the matter to Commissioner (Appeals) for denovo decision after examining the appellants plea regarding time bar. In denovo proceedings, the Commissioner (Appeals) vide order-in-appeal dated 04/03/14 again dismissed the appeal on the ground of time bar without going into the merits of the case. Against this order of the Commissioner (Appeals), this appeal has been filed alongwith stay application. The miscellaneous application has been filed for early hearing of the stay application.

2. Heard both the sides. Since only a short issue is involved, the Bench of the view that the appeal itself can be taken up for final disposal. Accordingly the requirement of pre-deposit is waived and with the consent of both sides, the matter is heard for final disposal.

3. Shri Krishnamohan K. Menon, Advocate, the learned Counsel for the appellant, pleaded that in terms of the provisions of Section 37C of the Central Excise Act, 1944, the mode of service of any decision, order or notice is by registered post with acknowledgement due (RPAD), that in this case, the order-in-original had been dispatched by speed post, that Honble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. vs. Union of India reported in 2012 (279) E.L.T. 353 (Bom.) has held that sending of order by speed post is not a sufficient compliance to the provisions of Section 37C (1) of the Central Excise Act, as in terms of the provisions of this Section 37C (1) the order is to be served on the assessee or his agent by sending it by RPAD or by other modes of service specified in Section 37C ibid, that same view has been taken by Honble Punjab & Haryana High Court in the case of CCE, Ludhiana vs. Best Dyeing reported in 2011 (271) E.L.T. 518 (P&H), that in this case while the impugned order-in-original was passed on 16/03/12, on the same day, the Jurisdictional Range Officer had addressed a letter to the appellant for recovery of the adjudicated liability which had been received by the appellant on that day itself, that since the appellant had not received the order-in-original on that day, after waiting for about one month, they on 13/04/12 wrote to the Range Officer to provide the copy, that even after this communication, the copy was not provided until the appellant approached the concerned officer of the Department and received the copy personally, that copy of the order, as is clear from the endorsement on the last page of the adjudication order, was provided to the appellant only on 18th June, 2012, that in view of this, the date of communication has to be treated as 18th June, 2012 and since the appeal has been filed on 17/08/12, the same was filed within time, that if the copy of the order had been served to the appellant immediately after the appellants communication dated 13/04/12, the appellant would have been able to file the appeal within time, that the appellant had also tried to check the date of delivery of the order on the website of the speed post on the basis of EC number, but the information on the website was showing that the consignment has not been found and thus it cannot be said that the order was delivered to the appellant, and that in view of this, the impugned order dismissing the appeal as time barred is not correct.

4. Shri Ranjan Khanna, the learned DR, defended the impugned order by reiterating the findings of the Commissioner (Appeals) and cited the judgments of Honble Allahabad High Court in the case of Mirzapur Electrical Industries Ltd. vs. CCE, Allahabad reported in 2014 (300) E.L.T. 496 (All.), wherein with regard to the provisions of Section 35C of the Central Excise Act regarding mode of delivery of the order, Honble High Court has held that registered post and speed post are the same method of service and the object of sending by registered post is to keep record which is also served by sending the order/notice by speed post through the same agency, that same view has been taken by Tribunal in the case of Industrial Enterprises vs. CCE, Kanpur reported in 2009 (234) E.L.T. 452 (Tri. Del.), that since in this case the order had been dispatched on 16/03/12 by speed post, it is presumed to have been served on the appellant and, hence, the appeal filed by the appellant is time barred. He also pleaded that delay in filing of appeal is beyond 30 days which cannot be condoned by the Commissioner (Appeals) and in this regard he relied upon Apex Court judgment in the case of Singh Enterprises vs. CCE, Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C.). He, therefore, pleaded that there is no infirmity in the impugned order.

5. I have considered the submissions from both the sides and perused the records.

6. The Commissioner (Appeals) has not gone into the merits and, has dismissed the appeal only on the ground of time bar holding that while the order-in-original dated 16/03/12 passed by the Additional Commissioner was sent to the appellant by speed post on the same day vide EC No. 830043559 IN, is to be treated as having been received in March 2012 and, hence, the appeal filed on 17/08/12 has to be treated as filed after a delay of more than 30 days and, as such, the period of delay in filing of appeal cannot be condoned. Thus, the only point of dispute in this case is as to whether the appellant had received the order-in-original dated 16/03/12 in the month of March itself or as contended by them, they received this order on 18/06/12, when as per the endorsement on the last page of the order, a Xerox copy of the same was supplied to them.

7. Though the order dated 16/03/12 was dispatched to the appellant by speed post, according to the appellant the same was not received by them. It is seen that on the same day i.e. on 16/03/12, the Jurisdictional Range Officer had also addressed a letter to the appellant directing them to deposit forthwith the duty demand of Rs. 20,42,197/- confirmed against the appellant alongwith interest and penalty of equal amount imposed on them, but he did not endorse the copy of the adjudication order. Since on that day, the appellant had not received the order, after waiting for sometime, they addressed a letter on 13/04/12 to the Range office informing him that the order had not been received and with a request to supply the same. This letter was received in Range office on 16/04/12. If the copy of the order had been supplied on that day itself i.e. on 16/04/12, the appellant would have been able to file the appeal within time. But the Xerox copy of the order was given only on 18/06/12 when the appellant approached the concerned officer. It is also seen that Honble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. vs. Union of India (supra) has held that sending of order by speed post is not sufficient compliance to the provisions of section 35c (1) and the order must be sent by Registered post AD or by other modes of service specified in Section 37C. Same view has been taken by Honble Punjab & Haryana High Court in the case of CCE, Ludhiana vs. Best Dyeing (supra) Though Honble Allahabad High Court in the case of Mirzapur Electrical Industries Ltd. vs. CCE, Allahabad (supra) and also the Tribunal in the case of Industrial Enterprises vs. CCE, Kanpur (supra) has taken a contrary view, I am of the view that it is the decision of Honble Bombay High Court and Honble Punjab & Haryana High Court which has to be followed, as when Section 37C itself prescribes a particular mode of service of the orders, the service must be by that mode only. Moreover, in this case when on 13/04/12, the appellant had informed the Department that the order had not been received and if the order had been supplied forthwith, the appellant would have been able to file the appeal within time, but this was not done. In view of this, I hold that the date of receipt has to be treated as 18/06/12 and if the limitation period is counted from this date, the appeal has been filed within time. In view of this, the impugned order dismissing the appeal as time barred is not sustainable. The same is set aside and the matter is remanded to the Commissioner (Appeals) for decision on merits. The appeal as also stay application and miscellaneous application stand disposed of as above. (Dictated and pronounced in open court) (Rakesh Kumar) Member (Technical)