2010 (8) TMI 308 - HC - Central Excise

Appeal - service of notice in appeal pending before CESTAT - no procedure for serving notice by substituted service by publication in the newspapers - was incumbent on the part of the appellant to have obtained permission from the Tribunal and take out notice under Section 37C(1)(c) of the Act - appellant only pleaded sufficiency of affixing notice on the factory gate and also at the old residence of the Managing Director - Held that - procedure is not followed, it is not incumbent on the part of the department to contend that the appellate authority ought to have allowed the procedure - department affixed notice of appeal at the factory gate and at the old residence of the Managing Director - appeal dismissed for non-prosecution

Summary

Issues:
Appeal under Section 35(G) of the Central Excise Act, 1944 against Final Order of Customs, Excise and Service Tax Appellate Tribunal; Service of notice in appeal under Section 37C(1)(c) of the Act.

Analysis:
The case involved an appeal under Section 35(G) of the Central Excise Act, 1944, against the Final Order of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT). The appellant, a tobacco company, was accused of clandestine manufacture of cigarettes and removal without paying proper excise duty. The original authority confirmed the show cause notice, demanding duty and imposing penalties. The appellate authority modified the order, directing to appropriate the duty paid voluntarily by the Managing Director. The Department appealed to CESTAT, which was dismissed for non-prosecution.

The central issue revolved around the service of notice in appeal under Section 37C(1)(c) of the Act. The Senior Standing Counsel argued that the Tribunal should have allowed the appellant to serve the notice as per the Act. Section 37C outlines methods of service, including tendering, registered post, affixing at the premises, or on the notice board of the issuing authority. The Tribunal found that the appellant failed to follow the proper procedure for serving notice in appeal pending before CESTAT. The appellant only affixed the notice at the factory gate and the old residence of the Managing Director, without obtaining permission and following Section 37C(1)(c) requirements.

The Court upheld the Tribunal's decision, stating that in the circumstances where the notice was only affixed at the factory gate and the Managing Director's old residence, the appeal dismissal for non-prosecution was justified. The Court emphasized that the appellant should have followed the prescribed procedure under Section 37C(1)(c) for serving the notice in appeal. Therefore, the central excise appeal was dismissed, affirming the Tribunal's decision based on the lack of proper service of notice.