- (1.) Heard Sri Manish Goyal, learned Counsel for the Appellant and Mohd. Munish, learned Counsel for the Respondent. The Appellant is in appeal against the order of the learned Tribunal dated 19.11.2010, whereby the order of the Commissioner Central Excise (Appeals) dated 23.3.2010, dismissing the appeal filed by the Appellant beyond the prescribed period of limitation has been upheld. The learned Tribunal proceeded to hold that the Respondent have been able to establish that the copy of original order was served on the Appellant on 25.2.2009 and not on 04.05.2009, as contended on behalf of the Appellant herein. Reliance was placed on an entry made in the diary of the department employee, which reads as under: 9.30/12.00 Hrs. PAR NAINI SE M/S. TRIVENI GLASS SHEET KE MAIN OFFICE ME JAKAR PATRANK SANKHYA v. (30) Dem/82/06 dated 143-23.1.09 KO RECEIVE KARWAKAR VAPAS TAMEEL. The number given, therefore, is v. (30) Dem/82/06 dated 143-23.1.09.
(2.) Learned Counsel for the Appellant draws our attention that the Order-in-Original was numbered as 313-Dem-/2008 dated 15.12.2008 and, therefore, what was claimed by the Respondent to have been served upon the Appellant, was not the relevant order, if assuming it had been served. It is submitted that the learned Tribunal did not consider this aspect of the matter and, therefore, the finding recorded by the Tribunal is clearly perverse and contrary to the record. It is further submitted that considering Section 37-C of the Central Excise Act, 1944, service has to be effected in the manner set out in the Act. Therefore, this is a question, which requires consideration.
(3.) In the light of that, this appeal is admitted on the following substantial questions of law: A. Whether the Tribunal failed to exercise the jurisdiction vested in it by not considering the provision of Section 37C of the Central Excise Act, 1944 before recording the conclusion about the date of service of order upon the Appellant? B. Whether the department is required to serve the order-in-original in the manner prescribed under Section 37C of the Act and is also required to prove due service in accordance with the said provision?;