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2015 (7) TMI 894 - SUPREME COURT

2015 (7) TMI 894 - SUPREME COURT - 2015 (322) E.L.T. 192 (SC) - Condonation of delay - Order served on unauthorised person who was a ‘Kitchen boy’ employed on daily wages - Held that:- 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 Authorities below as it has ine .....

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thorized agent, in other words, on no other person, to ensure efficaciousness - Decided in favour of assessee. - Civil Appeal Nos. 5631-5632 of 2015, Arising out of SLP (Civil) Nos. 22905-22906 of 2014 - Dated:- 20-7-2015 - Vikramajit Sen And Shiva Kirti Singh,JJ. For the Petitioner : Mr Vinay Garg, Adv., Mr Uday Singh, Adv. and Mr Vibhor Mathur, Adv. For the Respondents : Mr Liz Mathew, Adv., Mr Naresh Sharma, Adv. and Mr B Krishna Prasad, Adv. ORDER Delay condoned. Leave granted. The Appellant .....

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has been granted by the Central Government with the objective of giving a fillip to the industrialization of the newly created State of Uttarakhand. The dispute is whether the Appellant s factory/unit is situated on land which is covered by the aforesaid Notification, but we are not immediately concerned with this contentious issue in theses Appeals. It appears that on 28.7.2011, the Assistant Commissioner, Customs and Central Excise Division, Haldwani had concluded the proceedings and hearings .....

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The Appellant filed an Appeal against the said Adjudication Order in the Office of the Commissioner (Appeals), Customs and Central Excise (Meerut-II) asserting that consequent upon the initiation of the recovery proceedings by the Department, the Appellant learned for the first time, on 26.7.2012, of the passing of the aforesaid Order dated 30.3.2012. The case put forward is that the Adjudication Order dated 30.3.2012 appears to have been served on an employee of the Appellant, named Sanjay, wh .....

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nd that it was time-barred. The period was held to have started to run from 3.4.2012 and since the Appeal had been filed on 22.8.2012 it was held to be not maintainable, being beyond the prescribed period of sixty days. The merits of the Appeal were not gone into at all. This decision was challenged before the Customs Excise and Service Tax Appellate Tribunal, New Delhi, which accepted the Department s version that the Adjudication Order had been duly served/delivered on the Appellant on 3.4.201 .....

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wer to condone the delay beyond the statutory period. We may underscore the important facet of the Appeal, viz., that the Appeal filed by the Appellant has not been considered on merits at all. The Appellate Authorities as well as the High Court failed to keep in perspective the essential issue - namely - to ascertain the date from which limitation was to be calculated. Learned counsel for the Appellant has consistently relied upon Section 37C of the Act, which is reproduced for facility of refe .....

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ereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice." Sub-section (a) of Se .....

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ned 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 th .....

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ies below as it has inevitably led to a miscarriage of justice. The Inspector of the Department should have meticulously followed and obeyed the mandate of the statute and tendered the Adjudication Order either on the party on whom it was intended or on its authorized agent and on one else. It is not the Respondents case that Shri Sanjay was the authorized agent. Even before us, despite several opportunities given, the Respondents have failed to file their response to the Special Leave Petitions .....

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