2009 (3) TMI 722 - AT - Central Excise

Order - Service of - Mode of delivery - Held that - sub-clause (b) of Section 37C is to be adopted only when the order cannot be served in the manner provided in clause (a). Admittedly, there is nothing in the impugned order of the Commissioner (Appeals) to show that the order was first sent by registered post with acknowledgement due and could not be served in the manner provided in sub clause (a). As such we are once again constrained to set aside the impugned order and remand the matter to Commissioner (Appeals) for examining the above factual aspect and to re-decide the issue on the basis of the same - appeal allowed by way of remand.

Summary

Issues:
1. Appeal dismissed on limitation without considering merits.
2. Disputed issue of limitation.
3. Service of orders under Section 37C.
4. Mode of service when first mode exhausted.

Analysis:
1. The Tribunal observed that the Commissioner (Appeals) had dismissed the appeal solely on the grounds of limitation without delving into the merits of the case. The matter had been previously remanded to the Commissioner (Appeals) to decide on the disputed issue of limitation. The appellant highlighted the provision of Section 37C and a Tribunal decision emphasizing that affixing orders on the appellant's premises is not sufficient service.

2. The Commissioner (Appeals) rejected the appellant's contention regarding the service of the impugned order, stating that the order was affixed on the factory premises as the unit was closed. However, the appellant argued that there was no finding that the order was first served by registered post with acknowledgment due before resorting to affixing it on the premises. The Tribunal emphasized that affixing orders on premises is a secondary mode of service.

3. Section 37C mandates that decisions or orders should be served by registered post with acknowledgment due as the primary method. If this mode fails, orders can be affixed to the premises. The Tribunal noted that the impugned order did not show that the order was initially sent via registered post with acknowledgment due before resorting to affixing it on the factory premises. Consequently, the Tribunal set aside the Commissioner (Appeals) order and remanded the matter for further examination.

4. The Tribunal reiterated that the mode of affixing orders on premises should only be employed if the primary mode of service via registered post with acknowledgment due fails. Since there was no evidence that the order was first sent through the primary mode, the Tribunal decided to remand the case for the Commissioner (Appeals) to reassess the issue based on this factual aspect. The stay petition and appeal were disposed of accordingly.