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TMI Blog2025 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... inal No. 23/2016 (AC) dated 15.11.2016 passed by the Assistant Commissioner of Customs, Central Excise and Service Tax, Salem against which the party has belatedly filed the appeal and which was sent to the earlier leased factory was received by the appellant only on 26.10.2017 and the appellant has filed the above appeal without any further loss of time on 17.11.2017. As such, the appeal has been filed in time as there is no compliance with the provisions of Section 37C of the Act and as there is evidence that the copy of the order was served on some other person or servant working in erstwhile company wherein the name was not even mentioned cannot be treated as service of the order. Considering that the Appellant had vacated the premises before the issuance of the Order-in-Original dated 15.11.2016, it is considered appropriate to direct the lower authority to decide the Appellants' appeal on merits. The order to be passed shall be a reasoned order dealing with all submissions of Appellant in strict compliance of the principles of natural justice. It is clarified that this order would not absolve the petitioner from its liability to pay taxes, if any. Conclusion - The service o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had obtained the Order-in-Original No. 23/2016 (AC) dated 15.11.2016 of the Assistant Commissioner of Customs, Central Excise & Service Tax, Salem only on 26.10.2017 by making correspondence with the Superintendent of the Central Excise, Namakkal. She has informed that the leased premises from where the Appellant was functioning during the disputed period was vacated on 29.11.2014 and the impugned Order-in-Original dated 15.11.2016 was not communicated to the Appellant in terms of Section 37C of the Central Excise Act, 1944. She has further submitted that the Appellant was prevented by sufficient cause from filing the appeal within the stipulated time limit before the Lower Appellate Authority. 2.2 The Ld. Counsel for the Appellant has further argued that the Ld. Appellate Authority ought to have considered the provisions of Section 37C(1)(a) of the Act which mandates that order has to be served on the person for whom it is intended or his authorized agent. The authorized person in this case means the person authorized by the petitioner's company to receive the notices / summons / orders under the Central Excise Act, 1944. Mr. V. Manikandan and Mr. K. Velu are the partners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esented before us, we find that the Show Cause Notice dated 20.06.2016 was sent to the registered address of the Appellant as available with Department's records and the same was received by the Appellant and even a reply was furnished to the adjudicating authority on 17.07.2016. Thereafter, the Order-in-Original dated 15.11.2016 was sent to the same address which was reportedly received by some person available at the address i.e., the factory premises (M/s. Elaya Perumal Sago Factory). However, it is the plea of the Appellant that they have vacated the premises in 29.11.2014 itself and hence were not aware of the Order-in-Original No. 23/2016 (AC) dated 15.11.2016. The Appellant got to know of the Order-in-Original dated 15.11.2016 through Mrs. Vasuki working in M/s. Elayaperumal Sago Factory. Immediately, the Appellant have taken steps to apply for the certified copy and received the same on 26.10.2017. According to the Ld. AR, there is no valid reason to believe that the Appellant was prevented from any sufficient cause from filing the appeal in time when the Appellant had received the Show Cause Notice dated 20.06.2016 and even provided a reply to the Adjudicating Authority, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Department that it simultaneously also dispatched the Order to the Appellant by registered post with acknowledgment due. It is an anathema in law to decide a matter without due notice to the concerned party. Every effort must be taken to meaningfully and realistically serve the affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action. The Appellant justifiably submits that it was statutorily impermissible for the Respondents to serve the Adjudication Order on a "kitchen boy", who is not even a middle level officer and certainly not an authorized agent of the Appellant. The version of the Appellant that it learnt of the passing of the Adjudication Order dated 30.3.2012 only when, in the course of the recovery proceedings, the Department's officials had visited its unit, is certainly believable. The fact that, firstly, the Order had not been passed in the presence of the Appellant, so as to render its subsequent service a formality, and secondly, that the Order came to be passed after an inordinate period of eight months should not have been ignored. This fact should not have been lost sight of by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the period would commence at least from the date on which the Appellant asserts knowledge of its existence, i.e. on 26.7.2012. So computed, the Appeal filed before the Commissioner (Appeals) on 22.8.2012 would be within the prescribed period of 60 days and should, therefore, have been entertained on merits. It is ordered accordingly. The Appellant shall appear before the Commissioner (Appeals) on the forenoon of 3.8.2015. The Appeal shall then be taken up and heard on its merits." 7. Appreciating the ratio of the above decision, we find that in this case the Order-in-Original No. 23/2016 (AC) dated 15.11.2016 passed by the Assistant Commissioner of Customs, Central Excise and Service Tax, Salem against which the party has belatedly filed the appeal and which was sent to the earlier leased factory was received by the appellant only on 26.10.2017 and the appellant has filed the above appeal without any further loss of time on 17.11.2017. As such, we are of the considered view that the appeal has been filed in time as there is no compliance with the provisions of Section 37C of the Act and as there is evidence that the copy of the order was served on some other person or servan ..... X X X X Extracts X X X X X X X X Extracts X X X X
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