TaxTMI 
TaxTMI 
2014 (2) TMI 1204
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....st appellate authority has recorded that the appellant had claimed that the OIO dated 29.8.2005 was received by them on 2.1.2012. The first appellate authority called for report from the jurisdiction Asst. Commissioner, who reported that the appellants factory was closed and hence OIA and show cause notice was pasted on the closed premises after drawing proper panchanama, coming to such a conclusion he rejected the appeal. 3. Ld Counsel appearing on behalf of the appellant submits that there was no proper service of OIO. It is his submission that as per the provision of section 37C revenue has to exhaust all the options for serving the order and on such exhaustion order can be pasted on the premise of the appellant. He draws strength fo....
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....f service of OIO by all the alternative means provided under section 37 C of Central Excise Act 1944, but the same is not traceable. On such categorical report, the first appellate authority, in my considered view should have held with the alternative method of service has provided under sec. 37 C were not exhausted. 7. In this, I also find that there is nothing on record to show that the revenue has exhausted all the modes of serving of OIO on the appellant before embarking on pasting of the OIO on the premises of the appellant. In my view, division bench in the case of M/s Trans Global Agencies Pvt Ltd., vs CCE, Daman, 2009(245)ELT 757 (Tri. Ahmd.) which is of would cover the issue directly in favour of the appellant. I respe....
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....e of orders, as also to the Larger Bench decision of the Tribunal in the case of Margra Industries Ltd. v. Commissioner of Customs, New Delhi reported in 2006 (202) E.L.T. 244 (Tri.-LB) laying down that affixing of order in the appellant's premises is not sufficient service of the same. 2. Commissioner (Appeals) in his impugned order has again rejected the appellant's contention by observing as under :- "I have heard the appellants and have examined the matter. The matter of service of the impugned order-in-original was enquired from the concerned Range Superintendent of Range-IV of Vapi Division-I and he vide his letter F.No. AR-IV/Demand/Transglobal/05-06/512, dated 18-6-2008 informed that 'The said unit is closed and th....
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....ision, 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;" As is clear sub-clause (b) of Section 37C is to be adopted only when the order cannot be served in the manner provided in clause (a). Admittedly, there is nothing in the impugned order of the Commissioner (Appeals) to show that the order was first sent by registered post with acknowledgement due and could not be served in the manner provided in sub clause (a). As such we are once again constrained to set aside the impugned ....