EURO COTSPIN LTD. Vs. COMMISSIONER OF C. EX.

JUDGEMENT

(1.) THESE three appeals were heard on the point of limitation. Learned Counsel for the appellant submitted that as there was no valid service of the order -in -original in terms of section 37C of the Central Excise Act, and the appellants filed the appeal within period of limitation reckoned from the date of service of the orders, the appeals are not time barred. Counsel submitted that in terms of Section 37C of the Act, any order or decision has to be served, firstly, by tendering i.e. by hand delivery to the assessee and if it is not so served, by sending it by registered post with acknowledgement due. If is duly when services cannot be effected by these modes that recourse can be taken to house service. Counsel stated that without complying with the said procedure, the Department affixed copy of the order as provided in Clause (2) of Section 37C, but as the service in the manner provided in Clause (b) can be effected only after complying with the procedure provided in clause (a), there was no valid service. Counsel relied upon a decision of the Tribunal in the case of Semcon Devices Pvt. Ltd. in Appeal No. E/295/05 : 2007 (220) E.L.T. 267 (T). Reliance was also placed on the decision of the Larger Bench in the case of Margra Industries Ltd. v. Commissioner of Customs, New Delhi 2006 (202) E.L.T. 244 (Tri. - LB) .

(2.) ON behalf of the Department it was submitted by the learned Departmental Representative in the case of Margra Industries Ltd., it was held by the Larger Bench that there should be proof of valid service. Dispatch of adjudication order by post would not amount to valid service in absence of proof of delivery and as far as the present case is concerned, the dispatch sent by registered post was returned with the remarks of the postal peon that the factory was lying closed, it cannot be said that Clause (a) of Section 37C was not complied. It was urged that after complying with the procedure contemplated in Clause (a), the Department followed the procedure prescribed under Clause (b) and affixed the copy of the order. He accordingly urged that the appeal is barred by limitation as it was not preferred within 90 days of the affixing of copies of the order on 17/18th February, 2004.

(3.) HAVING held that there was service of notice as prescribed under Rule 37C(1)(a), the position which emerges is that the appeals are barred by limitation having not been preferred the appeal within 90 days of the service of adjudication order. But as indicated above, the appellant has taken care to file application for condonation of delay. We heard learned Counsel appearing for the appellant and the learned DR for the Department on the COD application. Counsel for the appellants submitted inter alia that the orders were passed without giving due opportunity of hearing. It was stated that during the relevant period the factory was closed. There were also proceedings pending before the BIFR under the Sick Industrial Companies (Spl. Provisions) Act, 1985 and, in the circumstances, appellant could not get itself properly presented.