TMI Blog2017 (12) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... lant is incorrect. Admittedly, the company was closed at the relevant time and there was proper service of the impugned orders upon the appellant. The CESTAT dismissed the appeals and concluded that the mode of service by affixing a copy of the order on the factory gate was within the purview of Section 37C of the Act on the basis that this was not disputed by the appellant - Delay in filing the appeals is condoned and the Central Excise Appeals are remanded to the Commissioner of Central Excise (Appeals) for fresh consideration on merits and in accordance with law - CENTRAL EXCISE APPEAL NO.8 OF 2016 & CENTRAL EXCISE APPEAL NO.9 OF 2016 - - - Dated:- 20-12-2017 - A.S. OKA A.K. MENON, JJ. Mr. Dineshkumar A. Dubey for the Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hortage of 54680 kgs. of polyester chips which resulted in a show notice being issued on 19th January, 2005. 4. The appellant reportedly reversed the CENVAT credit taken on short receipt of goods in respect of which the Deputy Commissioner confirmed the demand of the Cenvat credit amounting to ₹ 3,47,764/- on 54680 kgs of polyester chips. The penalty of ₹ 3,47,764/- remained to be paid. The order of the Deputy Commissioner was not served upon the appellant as contemplated under Section 37C(1)(a) because the factory had apparently been closed in view of the BIFR having recommended winding up of the company and the Official Liquidator, High Court Bombay having been appointed as the provisional liquidator on 22nd March, 2007. Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal it was contended that the adjudication order was required to be sent by the Registered Post Acknowledgment Due. However, in the present case the panchnama reveals that the order was attempted to be served in person at the premises of the company but as nobody was available to receive the notice, a copy was pasted on the notice board of the company. The Tribunal accepted the version of the Revenue and made reference to the panchnama dated 5th June, 2008 and recorded that Central Excise Officers had tendered the order in person at the factory premises of the appellant. The security personnel informed that the factory has been closed and, therefore, the said officers affixed a copy of the order at the factory gate. The same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Deputy Commissioner in each of these cases was not in empty formality. The service of notice as contemplated was a crucial aspect to be considered at the material time. The order of adjudication ought to have been served upon the Official Liquidator. The revenue should have known this. However, this aspect appears to have been ignored by the Commissioner (Appeals) on the basis that the Commissioner (Appeals) could not have condoned the delay. 10. The CESTAT dismissed the appeals and concluded that the mode of service by affixing a copy of the order on the factory gate was within the purview of Section 37C of the Act on the basis that this was not disputed by the appellant. In any event the order of the Tribunal proceeded only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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