9911796707
TMI Blog2011 (4) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... order, summons or notice. Earlier it was sought to be sent by Registered Post at the Factory premises of the appellant. The record shows that it could not be served as it was returned with the postal endorsement as 'the Factory closed'. when the matter arises as to the right of a party in the form of extinguishment of remedy of an appeal, then such provision, though procedural, must be strictly construed or in other words, the strict mandate of the language of the Section must be complied with. Furthermore, between taking a view which permits a party to pursue his remedy and which defeats the right to such remedy, the law must lean in favour of the person, who comes to the Court to pursue his remedy, rather than the person seeking to defea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant order, if assuming it had been served. It is submitted that the learned Tribunal did not consider this aspect of the matter and, therefore, the finding recorded by the Tribunal is clearly perverse and contrary to the record. It is further submitted that considering Section 37-C of the Central Excise Act, 1944, service has to be effected in the manner set out in the Act. Therefore, this is a question, which requires consideration. 3. In the light of that, this appeal is admitted on the following substantial questions of law:- "A. Whether the Tribunal failed to exercise the jurisdiction vested in it by not considering the provision of Section 37C of the Central Excise Act, 1944 before recording the conclusion about the date of servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a copy thereof is affixed in the manner provided in sub-section (1)." 5. A perusal of these provisions would, therefore, show that the decision, order, summons or notice shall be deemed to have been served, if it has been served in the manner as set out in sub-section (1) of Section 37-C of the Act. In the instant case, the stand of the Department is that the order-in-original was served in the manner set out in Section 37-C (1) (a) of the Act by tendering the decision, order, summons or notice. Earlier it was sought to be sent by Registered Post at the Factory premises of the appellant. The record shows that it could not be served as it was returned with the postal endorsement as 'the Factory closed'. Both the Commissioner (Appeals) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the decision or order is different from the decision or order, which was served by the respondents on the appellant. This has not been explained by the respondents. In our opinion, therefore, as the respondents have failed to establish that they have served the order or decision in the manner required under Section 37-C (1) (a) of the Act, there is service on 25.02.2009. It is no doubt true that in the matter of service of notice, it being merely procedural, a party has to establish the prejudice occasioned on account of non-service in the matter. However, in our opinion, when the matter arises as to the right of a party in the form of extinguishment of remedy of an appeal, then such provision, though procedural, must be strictly const ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
