Mr.Asif Aman Bagad vs Commissioner, Central Excise & Service ...

Appeal No.E/10321-10324/2015, C/10325-10328/2015; E/COD/10232-10235/2015, C/COD/10236-10239/2015 [Arising out of OIO-SUR-EXCUS-002-COM-101-13-14, dt.10.03.2014, and OIO No.SUR-EXCUS-002-COM-102-13-14, dt.10.03.2014, passed by Commissioner of Central Excise & Service Tax, Surat]

1. Mr.Asif Aman Bagad, 2. M/s Faizan Texturising, 3. Mr.Altaf Aman Bagad, 4. M/s Faizan Texturising (Unit II) Appellants

Vs

Commissioner, Central Excise & Service Tax, Surat-II Respondent

Represented by:

For Appellant: Shri Ajay Banerjee, Advocate For Respondent: Shri L. Patra, Authorised Representative

For approval and signature:

Honble Mr. P.K. Das, Member (Judicial) Honble Mr. P.M. Saleem, Member (Technical)

1. Whether Press Reporters may be allowed to see the No Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether their Lordships wish to see the fair copy of Seen the order?

4. Whether order is to be circulated to the Departmental Yes authorities?

CORAM:

HONBLE MR. P.K. DAS, MEMBER (JUDICIAL) HONBLE MR. P.M. SALEEM, MEMBER (TECHNICAL)

Date of Hearing/Decision:07.07.2015

Order No. A/10966-10973/2015, dt.07.07.2015

Per: P.K. Das

A common issue is involved in these applications and therefore, all are taken up together for disposal.

2. The Applicants filed these applications for condonation of delay of filing appeals. The learned Advocate on behalf of the Applicants submits that by a letter dt.10.12.2007, they had informed the jurisdictional Assistant Commissioner for change of address. He submits that both the impugned orders dt.10.03.2014 were not served to them as per the procedure prescribed under Section 37C of Central Excise Act, 1944. He submits that the orders were not sent by Post as required under Section 37C(1)(a) of the said Act. In this connection, the learned Authorised Representative for the Revenue submits that the order was served as per procedure as prescribed in Clause (b) of the Section 37C(1) of the said Act. He submits that a copy of the order was affixed at the gate of the Appellants factory. The learned Advocate placed the decision of the Tribunal in the case of M/s Reynolds Petro Chem Ltd Vs Commissioner, C.E.& S.T., Surat-II in Order No.A/10307/2014, dt.28.02.2014, which was followed by the decision of the Tribunal in the case of Trans Global Agencies Pvt. Ltd Vs CCE Daman  2009 (245) ELT 757 (Tri-Ahmd).

3. After considering the submissions of both the sides and on perusal of the records, we reproduce the relevant provision of Section 37C of the Central Excise Act, 1944 as under:-

 Section 37C: Service of decisions, orders, summons, etc.-

(1) Any decision or order passed or any summons or notices issued 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 acknowledgement due, to the person for whom it is intended or his authorised 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;

4. On close reading of Section 37C of the Act, it is clear that as per Clause (a) Section 37C(1) the order shall be served by Registered Post with Acknowledgement Due to the person, for whom it is intended. As per Clause (b) of Section 37C(1), if the orders cannot be served in the manner provided in Clause (a) of the said Section, then the order would be affixed at the conspicuous part of the factory. In the present case, it is admitted position that the order was not served as per Clause (a) of Section 37C(1) of the said Act and therefore, the service of the order is not legal and proper.

5. In view of the above discussion, we find that it is a fit case for condonation of filing of appeal. Accordingly, all the applications for condonation of delay of filing appeals are allowed.

6. We find that the appeals may be disposed of at this stage. Accordingly, with the consent of both the sides, we take up all the appeals for hearing.

7. After hearing both the sides and on perusal of the records, we find that the main contention of the learned Advocate on behalf of the Appellants is that they could not file the reply to the Show Cause Notice and no proper opportunity of personal hearing was granted. On perusal of the impugned orders, we find that no personal hearing notice was issued in terms of Section 37C(1)(a) of Central Excise Act, 1944. It is observed by the Adjudicating authority that the notice of hearing was affixed at the factory gate. We also notice that the Appellant vide letter dt.10.12.2007 informed the change of address. The learned Authorised Representative for the Revenue submits that the said letter is in respect of de-bonding of the goods. In our view, the Appellants informed the change of address and it will be applicable in all respects.

8. After considering overall facts and circumstances of the case, we find that it is appropriate that the Appellants should be given an opportunity to defend their case before the Adjudicating authority in the interest of jusutice. In view of that, the impugned orders are set aside. All the appeals are allowed by way of remand to the Adjudicating authority to decide afresh, after considering the submissions of the Appellants. Needless to say that the Adjudicating authority shall give proper opportunity of hearing before passing of the order. The learned Advocate undertakes to co-operate with the Adjudicating authority in de-novo proceedings.

(Dictated & Pronounced in Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial)

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