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TMI Blog2025 (3) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... erest and imposing equal penalty under Section 11AC ibid. 1.2 Facts briefly stated are that the Appellant is engaged in the manufacture of Tapioca Sago (Sabudana) and Starch falling under CTH19030000 of CETA and had cleared the products w.e.f. 01.03.2011 without following Central Excise procedures-registration, payment of duty and without filing periodical returns. Consequently, the Show Cause Notice dated 20.06.2016 got issued proposing to demand duty along with applicable interest for the period from 03/2011 to 02/2013 and to impose penalty. The Adjudicating Authority confirmed the demand and imposed an equal penalty. The said order was reportedly served on the Appellant at the registered address as available in the records. The Appellant preferred an appeal before the lower Appellate authority on 17.11.2017 which was rejected as time barred without going into merits of the case vide Order-in-Appeal No. 115/2018 SLM-CEX dated 27.06.2018. 2.1 The main plea of the Appellant is to remand the matter to the lower appellate authority for deciding the case on merits. The Ld. Counsel Ms. S. Vishnupriya representing the Appellant have submitted that the Appellant had obtained the Order- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 643 (Tri.-Mad.)] 2.3 The Ld. Counsel has also stated that the Appellant has paid 47% of the demanded duty and they do not stand to gain anything by delaying the filing of the appeal. Relying on the decision in the case of M/s. OSA Shipping Pvt. Ltd. Vs. The Commissioner of Central Excise, Customs and Service Tax Appellate Tribunal [2015 (10) TMI 982 (Mad.)] she has submitted that the appellate authority ought to have condoned the delay which had happened due to non-receipt of the Order-in-Original dated 15.11.2016. 3. The Ld. Authorized Representative Mr. Sanjay Kakkar representing the Department supported the findings in the impugned order dated 27.06.2018 of the Lower Appellate Authority and submitted that the Appellant, a registered assessee was at fault for non-intimating the vacation of the registered premises to the department and therefore the appeal preferred before the lower appellate authority was time barred and hence prayed for dismissal of the appeal filed by the Appellant. 4. We have carefully considered the submissions made by both the sides and also evidences available on records. 5. On the basis of examination of the documents presented before us, we find that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under this Act or the rules made thereunder, shall be served, - (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due, to the person for whom it is intended or his authorized agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof 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 Section 37C (supra) states that any decision, order, summons or notice may either be sent by registered post with acknowledgement due to the person for whom it is intended or his authorized agent. If this mode of service is unsuccessful then service can be effect by affixation. It is not the case of the Department that it sim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t immediately recall the decision in Taylor vs. Taylor (1875) 1 Ch. D 426, rendered venerable by virtue of its jural acceptance and applicable for over a century. It was approved by the Privy Council in Nazir Ahmad v. King Emperor (1935-36) 63 IA 372 and was subsequently applied in Rao Shiv Bahadur Singh v. State of Vindhya Pradesh AIR 1954 SC 322, State of UP v. Singhara Singh AIR 1964 SC 358, Babu Verghese v. Bar Council of Kerala (1999) 3 SCC 422 and more recently in Hussein Ghadially v. State of Gujarat (2014) 8 SCC 425. As observed by this Court in Babu Verghese, "it is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all." The Inspector who ostensibly served the copy of the Order should have known the requirements of the statute and therefore should have insisted on an acknowledgement either by the Appellant or by its authorized agent. The Inspector had a statutory function to fulfil, not a mere perfunctory one. The Appeals are accordingly allowed and the impugned Orders are set aside. In the facts obtaining before us, the computation of the period would commence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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