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2005 (9) TMI 95 - HIGH COURT AT CALCUTTAService of adjudication order - whether the refusal could be treated to be the service within the meaning of Section 37C of the Central Excise Act, 1944 - authorised agent - HELD THAT:- The notice was admittedly sent through post and it has to be served to a person for whom it is intended or to an authorised agent, if any. Now, the question arises as to whether the said Shankar Sarkar could be treated to be as an authorised agent. In order to treat such person as an authorised agent, the onus shifted on the Department to show that he is an authorised agent, particularly when materials were produced before the Commissioner of Appeals and the learned Tribunal to show that he was not in service after 1st February, 2001 and the fact remains that the factory remained closed and stopped functioning, which information was already with the Department. Therefore, a refusal by such a person, who cannot be established to be an authorised agent, would not amount to a refusal by an authorised agent so as to come within the purview of Clause (a) of Section 37C. Thus, we answer the question in favour of the assessee and hold that the refusal, on the basis of which the Commissioner of Appeals had proceeded, could not be treated to be as acceptable service within the scope of Section 37C and the very fact that over phone the assessee was intimated and the assessee had received the adjudication order from the Department itself is indicative of the service on the date when the adjudication order was received by the assessee and as such, the limitation would start running from the date of receipt of the order of adjudication and the appeal having been filed within the period of 60 days, thereafter the appeal is well within time. Thus, the order passed by the Commissioner of Appeals and that by the learned Tribunal are hereby set aside. Let the appeal be decided and disposed of by the Commissioner of Appeals in accordance with law on merit as early as possible. This order is passed without prejudice to the rights and contentions of the parties.
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