- (1.) In this case, the assessee's undertaking was closed sometimes in 2001. Mr. Khaitan submits that information of such closure was furnished to the Central Excise authorities.
(2.) In relation to the certain proceedings, an adjudication order was passed, which was supposed to be served on the assessee at the address of the closed undertaking. However, subsequently, the copy was served by the assessee on being informed over phone from the office of the authority and within 60 days thereof an appeal was preferred before the Commissioner of Appeals. But that was rejected on the ground of being barred by limitation since preferred long after 90 days from the date of the alleged service of the order of adjudication on the basis of a postal remark 'Refused' endorsed on the envelop, sent by the Department at the address of the closed undertaking through post. The question arose as to whether the said refusal could be treated to be the service within the meaning of Section 37C of the Central Excise Act, 1944.
(3.) Mr. Khaitan, ably assisted by Ms. Anurupa Banerjee, submitted that the refusal can be treated to be a service only if that refusal has been made by the assessee or by a person authorised to receive documents on behalf of the assessee. Our attention has been drawn to a letter addressed by the Postal authority, which is at page 188, where it was pointed out that service was attempted to be made on one Shankar Sarkar. Ms. Banerjee, however, drew our attention to page 189, namely, an affidavit affirmed by Shankar Sarkar, who affirmed that he was discharged from service of the assessee from 1st February 2001. Our attention was also drawn to an affidavit affirmed by one of the directors, which is at page 167. It is pointed out by Mr. Khaitan that these materials were not considered by the Commissioner of Appeal, wherefrom it appears that the alleged refusal could not have been accepted as service within the meaning of Section 37C.;