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Addition of term "speed post" in section 37C of the Central Excise Act, 1944 by Finance Act, 2013 is: (a) clarificatory, (b) procedural for purpose of communication of decisions, etc.; (c) curative.

a) An adjudication order dated 12-7-2011 was served on assessee by speed post.

b) Assessee argued that service through 'speed post' was not a valid mode of service before amendment by the Finance Act, 2013 by saying that when statute had provided for service of orders by "registered post" on the petitioner, sending the order by "speed post" was not in strict compliance with the law and, hence, such notice served was in a manner not prescribed by law. Therefore, the same could not be held to be adequate service on the petitioner.

High Court held in favour of revenue as under:

1) In view of Section 28 of the Indian Post Office Act, 1898, read with Rule 66-B of Indian Post Office Rules, 1933, any postal article registered at post office and a receipt issued in respect of such article is to be treated as "registered post". Both in the case of "registered post" as well as "speed post", the articles when delivered to the post offices, receipts thereof are required to be issued, and consequently, both "speed post" and "registered post" satisfy the requirement of said Section 28.The only difference between registered post and speed post if at all is the charges payable are normally higher for "speed post" as the name suggests the delivery of such articles at an early date.

2) In the Full Bench of the Hon'ble Supreme Court in the case of Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, affirmed the judgment of Apex Court earlier in the case of R. Rajagopal Reddy v. Padmini Chandrasekharan (1995) 2 SCC 630 to the following effect:

"Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment, it does not create new rights or obligations. If a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. . . . A clarificatory amendment of this nature will have retrospective effect and therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act."

3) Following the above judgment of the Hon'ble Supreme Court, High Court further held that addition of term "speed post" in section 37C vide amendment by the Finance Act, 2013 is : (a) merely clarificatory, (b) procedural for purpose of communication of decisions, etc.; (c) curative, as various High Courts had already held that service through 'speed post' was a valid mode; hence, same was retrospective in its operation - Jay Balaji Jyoti Steels Ltd. v. Customs, Excise & Service Tax Appellate Tribunal, Kolkata (2015) 54 taxmann.com 176 (Orissa).

Source - Taxmann

ID: 322 | Views: 1663 | Date: 24-02-2015| Posted By:

CA Mohit Jain