2023 (5) TMI 9

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....Central Excise, Mumbai. 3. The main ground on which the Petitioner seeks to challenge the impugned order and remand to the Commissioner is breach of principles of natural justice. In the context of the limited challenge the brief facts are as follows:- 4. The Commissioner had earlier passed an Order-in-Original on 30 March 2004 in respect of liability of the Petitioner towards the payment of Central. In an appeal filed by the Respondents-The Customs, Excise & Service Tax Appellate Tribunal ("CESTAT") remanded the proceedings to the Commissioner and upon remand the Commissioner passed the impugned order. In the impugned order the Commissioner noted that virtual hearing of the matter was fixed on 19 November 2020, 3 December 2020 and 14....

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....tioner, in rejoinder, submitted that the acknowledgment as "left" for the notices for virtual hearing has not been annexed to the reply, but the acknowledgment are in respect of past notices. Learned Counsel for the Petitioner has also relied on Section 37C of the Central Excise Act, 1944. Section 37 C reads thus:- "37C. Service of decisions, orders, summons, etc.-(1) Any decision or order passed or any summons or notice 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 acknowledgment due, or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted unde....

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.... than three times, doe not make reference to how service should be effected. Section 33A also contemplates an opportunity of hearing being heard if the parties so desirous. Apart from this statutory provision, we have to keep in mind two factors that the period was admittedly a lock-down period and secondly, even as per the Respondents, the notices were returned with remark "left". Therefore, Petitioners were not served. Once the authority was aware that the Petitioner was not served as notices have been returned "left", then the such notices cannot be made foundation of passing an adverse order as such order would amount to passing an order without notice. 8. We have to be also mindful of the position during lock-down period, where e....