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2011 (4) TMI 61 - HC - Central ExciseDelay in appeal before Commissioner (Appeals) - date of service of an order against which appeal sought to be filed - 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'. 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 defeat the remedy, on technicalities. The Commissioner (Appeals) and the learned Tribunal misdirected themselves on the issue of recording a finding as to the date of service of the order-in-original on the appellant herein. - Matter restored to commissioner (appeals).
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