2014 (2) TMI 1204 - AT - Central Excise

Rejection of appeal - Bar of limitation - date of delivery of order in original - Held that - Report from Asstt Commnr, indicates that all possible efforts were made to trace documentary proof in respect of service of OIO by all the alternative means provided under section 37 C of Central Excise Act 1944 but the same is not traceable. On such categorical report the first appellate authority in my considered view should have held with the alternative method of service has provided under sec. 37 C were not exhausted. - there is nothing on record to show that the revenue has exhausted all the modes of serving of OIO on the appellant before embarking on pasting of the OIO on the premises of the appellant. In my view division bench in the case of M/s Trans Global Agencies Pvt Ltd. vs CCE Daman 2009 (3) TMI 722 - CESTAT AHMEDABAD which is of would cover the issue directly in favour of the appellant. - Impugned order is set aside - Matter remanded back - Decided in favour of assessee.

Summary

Issues Involved:
Appeal against rejection on grounds of limitation without considering merits.

Analysis:
The appeal in question challenges the rejection based on limitation without delving into the merits. The appellant claimed non-receipt of the Order-In-Original (OIO) dated 29.8.2005 until 2.1.2012. The first appellate authority rejected the appeal, citing the pasting of the OIO on the closed factory premises after a panchanama. The appellant argued improper service of the OIO, invoking Section 37C and citing precedents like M/s Margra Industries Ltd and M/s Sunny Textiles. The Department representative countered with panchanama copies and referenced the Hon. High Court of Kerala's decision in Additional Collector of Customs vs. Chellapan. The main contention was the failure to condone the delay due to non-receipt of the OIO by the appellant before 29.1.2012.

Upon review, it was found that exhaustive efforts to trace proof of OIO service were unsuccessful, indicating a lack of adherence to alternative service methods under Section 37C. The absence of evidence showcasing the exhaustion of all modes of service before resorting to pasting the OIO on the premises favored the appellant. Reference to the division bench case of M/s Trans Global Agencies Pvt Ltd vs CCE, Daman further supported the appellant's position. The judgment emphasized the necessity to follow due process and exhaust all avenues of service before resorting to pasting orders.

The judgment highlighted the significance of Section 37C, emphasizing that pasting an order on premises should only occur if prior service attempts fail. The absence of evidence regarding prior service attempts via registered post with acknowledgment due weakened the Department's case. Consequently, the impugned order was set aside, directing a fresh consideration by the adjudicating authority while upholding the appellant's stance on the limitation period for filing the appeal. The decision underscored the importance of procedural adherence and the principles of natural justice in such matters.

In conclusion, the judgment favored the appellant's argument regarding the limitation issue and the procedural lapses in serving the OIO. The decision stressed the need for meticulous adherence to statutory provisions and established precedents to ensure fair treatment and uphold the rights of the parties involved.