2016 (5) TMI 834 - HC - Central Excise

Service of notice - Whether the CESTAT is justified in accepting that the order dated 21.12.2010 was adequately served upon the appellant - no evidence adduced as to whether the post was ever tendered or affixed in the manner provided under sub-section (1) of Section 37 C of the Central Excise Act, 1944 - Held that - it is obligatory upon the Tribunal to satisfy itself about delivery or tendering of the notice before presuming that the notice was served as per sub-section (2) of Section 37 C of the Act of 1944. No such prima facie satisfaction has been recorded by the Tribunal. - Appeal allowed by way of remand

Summary

Issues:
1. Validity of service of notice under Section 37 C of the Central Excise Act, 1944.

Analysis:
The High Court examined the substantial question of law regarding the justification of the Customs, Excise and Service Tax Appellate Tribunal accepting the service of an order dated 21.12.2010 upon the appellant, despite lack of evidence regarding the proper service under Section 37 C of the Act. The appellant contended that there was no material available to prove the service of the notice. The respondent argued that as per Section 37 C, service is deemed to have been effected when the notice is sent by post. However, the Court disagreed with the respondent's stance, emphasizing that the Tribunal must ensure the delivery or tendering of the notice before presuming it was served, as per sub-section (2) of Section 37 C. Since no such satisfaction was recorded by the Tribunal, the appeal was allowed, and the orders passed by the Tribunal and the Commissioner were set aside.

The High Court held that it is mandatory for the Tribunal to ascertain the proper delivery or tendering of the notice before assuming it was served, as prescribed under sub-section (2) of Section 37 C of the Act. The Court noted the absence of prima facie satisfaction by the Tribunal regarding the service of the notice, leading to the decision that the appeal should be accepted. Consequently, the orders issued by the Customs, Excise & Service Tax Appellate Tribunal and the Commissioner were overturned. The case was remanded for further adjudication on its merits by the Appellate Authority, directing the appellant to appear before the Commissioner, Customs & Central Excise (Appeals-I), Jaipur, on a specified date, subject to a deposit requirement. The appeal was disposed of accordingly, ensuring a fair and thorough review of the service issue under the Central Excise Act, 1944.