TMI Blog2023 (11) TMI 412X X X X Extracts X X X X X X X X Extracts X X X X ..... he present case it is admitted fact from the report of Jurisdictional Assistant Commissioner dated 22.07.2014 that the order was neither tendered personally to the appellant nor send by registered post or by speed post to the appellant. However, the same was pasted/affixed on the gate of the appellant factory. As per the Clause (b) of Section 37 C(1) it is clear that only if the order cannot be served in the manner provided in clause (a )then only the order should be affixed to some conspicuous part of factory or warehouse or other business etc. as the case may be. The revenue has admittedly failed to comply with the provision of Clause (a) of Section 37 C (1). Therefore, the service of the order by affixing on the factory gate is absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 days. Accordingly the appeal was rejected on time bar without going into merit of the case. Being aggrieved by the said Order in appeal, appellant filed the present appeal. 2. Shri Nilesh Suchak, Learned Chartered Accountant appearing on behalf of the appellant submits that as per Section 37 C (1) it is mandatory on the part of the department to send the order by register post and if at all the same is not delivered then the second option is to paste/affix on the factory gate. In the present case admittedly the department has not sent the order to the appellant by the registered post. Therefore, the service of the order by pasting on the factory gate is not proper and legal. It is his submission that they filed appeal against the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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. 4.1 From the above section it can be seen that the order shall be served by tendering the same or sending it by register post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Central Excise and Customs constituted under the Central Board of Revenue Act 1963 to the person for whom it is intended or is authorized agent. In the present case it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the appeal before Commissioner (Appeals) well within stipulated time of 60 days. Therefore, there is no delay in filing the appeal. The ld. Commissioner (Appeals) should not have dismissed the appeal on time bar. Therefore, the impugned order is clearly not sustainable. Hence, the same is set aside. 4.2 The learned Commissioner (Appeals) shall decide the appeal on merit without going into aspect of limitation. Needless to say that before passing the appellate order on merit the appellant should be given opportunity of hearing, accordingly, the natural justice shall be complied with. 5. The appeal is allowed by way of remand to the learned Commissioner (Appeals) for deciding the matter on merit. ( Pronounced in the open court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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