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TMI Blog2017 (10) TMI 498X X X X Extracts X X X X X X X X Extracts X X X X ..... t be said that order was served to the company - the contention of the Revenue that acknowledgment of the order by the director of the company is the date of receipt of the order, accordingly appeal is time bar, is not acceptable, therefore, appeal before the Commissioner was well within the time and same was filed after company received the certified copy of the order from the department. Whether the order dated 28-2-3013 in writ petition No. 1951/13 has any implication in the proceedings of the Commissioner(Appeals)? - Held that: - the said petition was filed to quash the proceedings of recovery of adjudged dues arising out of Order-in-original and same was not for relief on merit. Though the department has filed an affidavit before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged order-in-appeal inasmuch Ld. Commissioner(Appeals) given relief on the time bar and matter was remanded to the Adjudicating authority. 2. Shri. A.B. Kulgod, Ld. Asstt. Commissioner(A.R.) appearing on behalf of the Revenue reiterating the grounds of appeal, submits that during the proceedings before the Commissioner(Appeals), respondent filed writ petition No.1951/2013 which was disposed of by the Hon ble Bombay High Court on 28-2-2013, it was held that no further relief can be granted in this proceedings on the basis of affidavit filed by Dy. Commissioner of Central Excise before the High Court. He submits that since the High Court has taken into consideration the fact regarding service of the order, not granted any relief ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not authorized to receive any order on behalf of the company. He submits that after BIFR proceedings got over as per the Bombay High Court. As per Bombay High Court order on BIFR case in july,2011 respondent approached the department and obtained a copy of the order in February, 2012 and thereafter they filed appeal. Till that time entire control of the company was with the official liquidator therefore even the order was delivered to the director, it cannot be said that proper service of the order to the company. In this regard, he placed reliance on the following judgments: (a) International Shipping Ltd Vs. Chandpur Jute Co. Ltd[1982 52 Compcas 121 Cal] (b) V. Natarajan and Anr. Vs. N. Salai Muthu and Anr. [(1984) 2 MLJ 17 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if an order is a nullity, no right can flow to anybody either to the plaintiff or to the defendant. The order seems to be obtained on complete suppression of material facts from the court, as, after the company went into liquidation without notice to the official liquidator, no suit can be dismissed under the special list or any other list and the court has no jurisdiction to dismiss the same without giving notice to the parties. The rule itself provides for serving such notice and it is admitted that no notice was served on the company which was wound up by the order dated 4th July, 1975, and the official liquidator was the-only person who can represent the company in liquidation and no notice was ever served on the official liquidator. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be given the notice of the rights and claims of that company as original decree-holder as per the provision of 0.21, r. 6 of the C.P.C., or the Official Liquidator who had taken the reigns of administration on 22nd April, 1976 on the petition filed for winding up the company, namely, C.P. No. 441 of 1976. The preliminary decree had been passed in the suit on 9th April, 1974. The said preliminary decree had been assigned by Uma Investments Private Limited, namely the company which is undergoing liquidation, in favour of the respondents in this revision petition. Now, a question has arisen as to whether these respondents who are ready and willing to pay the amount that is due and payable to the decree-holder have to pay after giving notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... find that the said petition was filed to quash the proceedings of recovery of adjudged dues arising out of Order-in-original and same was not for relief on merit. Though the department has filed an affidavit before the Hon ble Bombay High court wherein issue of service of the order was raised but the high court has not given any findings on that issue and petition was disposed of without granting any relief. The relief sought for was not on the merit which was involved in the appeal which was pending before the Commissioner(Appeals) but from the recovery of the dues. Therefore Hon ble Bombay high court order dated 28-2-2013 will not come into the way for deciding the appeal by the Commissioner(Appeals). The Commissioner(Appeals) has given i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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