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TMI Blog2006 (11) TMI 218X X X X Extracts X X X X X X X X Extracts X X X X ..... nt seeking restoration of its appeal No. E/374/90 which had been dismissed for default on 22.7.1997 on account of non- appearance of the appellant. 3. In its application for restoration of the said appeal filed nearly six years later in May, 2003, the appellant contended that the notice of hearing of the appeal was not received by it. The unit was lying closed since 1991. The place where the advocate for the appellant was residing, as shown in the records of the CESTAT, was lying vacant for the past six to seven years. It was accordingly contended that the appellant did not know of the dismissal of its appeal by order dated 22.7.1997 till the receipt of a letter dated 2.4.2003 from the office of the Superintendent of Central Excise, Range ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal to this Court under Section 35G of the Act would lie only 'if the High Court is satisfied that the case involves a substantial question of law.' It is submitted that the appellant's contention, based on Section 37C of the Act, that the order of the CESTAT had to be mandatorily served on the appellant, was misconceived inasmuch as the procedure governing the CESTAT was contained in Section 35D of the Act read with Rule 35 of the CEGAT (Procedure) Rules, 1982. 7. On 9.2.2005 Dr. Anil Baveja, the sole proprietor of the appellant died. The application being CM.No. 9166 of 2005 for bringing his legal representatives on the record was allowed on 17.8.2005. 8. On 18.1.2006, the respondent was directed to keep ready for perus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gives rise no substantial question of law since the Section 37C of the Act does not apply at all. Accordingly, he submits that the appeal ought to be dismissed. 11. We may first deal with the preliminary objection raised by the respondent that the present appeal does not involve any substantial question of law. For this purpose we may refer to Section 35D, 35G and Section 37C of the Act which reads as under: 35D Procedure of Appellate Tribunal - (1) The provisions of Sub-sections (1), (2), (5) and (6) of Section 129C of the Customs Act 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962 (52 of 1962). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rm of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 37C would come into play only where order was passed by the authorities under the Act and not where the orders are passed by the CESTAT. The procedure of the CESTAT is governed by Section 35D read with Rule 35 of the CEGAT (Procedure) Rules, 1982 which reads as under: Rule 35 Communication of orders to parties: Any other passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondent either in person or by registered post. In other words, it is submitted that Rule 35 only requires a copy of the order of the CESTAT to be sent by registered post and is not a mandatory requirement that such order should also be served on the addressee as required by Section 37C. 13. These cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r delivery of such decision by post as required under Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 is on the authority dispatching such notice. The sender will have to show that such notice was in fact sent by 'Registered Post' to the addressee. It is only then that deeming fiction spelt out in Sub-section (2) of Section 37C read with Section 27 of the General Clauses Act, 1897 would stand attracted. The burden thereafter would be on the addressee to show that such notice was not in fact served. 15. We, Therefore, hold that the provisions of Section 37C of the Act requiring the service of the decisions passed under the Act, would also apply to the decisions handed down by the CESTAT. This int ..... X X X X Extracts X X X X X X X X Extracts X X X X
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