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2014 (7) TMI 538 - CESTAT NEW DELHIAppeal before commissioner (Appeals) - appeal was singed by the brother of assessee - non delivery of order to the assessee - Non observance of procedure prescribed in Section 37C - it is a fact, admitted by the Appellant himself, that he was neither residing at the old address nor having any contact with the persons residing there and it was for this reason that the pasted O-I-O did not come to his knowledge - Held that:- Commissioner (appeal’s) observation are in the nature of assumption and presumption. Even if the sending of the order would not have resulted in any other situation, as observed by Commissioner (Appeals), even then the Revenue was required to follow due procedure of law. It is not open to the Revenue to deviate from the law laid down under procedure of Rule 37C, even though following of the same would not have served any purpose. It has to be kept in mind that all the creations of the statue are required to follow the law in deciding the legal issues and there is no scope for any personal assumptive conclusions. As the appellant received the order in July and during the relevant period, he was in jail, the appeal memorandum was signed by his brother - If the appellant was able to give the authorization to his brother, he could have very well signed the appeal papers himself. As the appellant, during the relevant period was in jail, as supported by his affidavit, filing of appeal under the signatures of his brother, may not be a serious objection, inasmuch as the same is a rectifiable defect and the applicant can sign the last page of the appeal, even subsequently and can rectify the defect. The procedure prescribed under the Manual is not procedure prescribed by the legislation and is meant for convenience of litigants and in the given case can be deviated from - Matter remanded back - Decided in favour of assessee.
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