IMPORTANT POINTS
When the statute provided a particular manner of service orders etc. service must be effected in that manner.
In the absence of proper service of the order as per the statute, limitation would start from the date of knowledge.

Order

Delay condoned.

2. Leave granted.

3. The Appellant is aggrieved by the fact that the right of Appeal bestowed on the assessee by the Central Excise Act, 1944 (in short ‘the Act’) has virtually been rendered nugatory since, successively, its Appeal has been declined consideration on merits, having instead held as time-barred.

4. Succinctly stated, the Appellant had sought to take advantage of a Notification granting exemption from payment of Central Excise Duty as well as Additional Duty of Excise for a period of ten years. This moratorium/exemption has been granted by the Central Government with the objective of giving a fillip to the industrialization of the newly created State of Uttarakhand. The dispute is whether the Appellant’s factory/unit is situated on land which is covered by the aforesaid Notification, but we are not immediately concerned with this contentious issue in theses Appeals. It appears that on 28.7.2011, the Assistant Commissioner, Customs and Central Excise Division, Haldwani had concluded the proceedings and hearings in respect of the show cause notice dated 25.3.2011 issued to the Appellant. The Appellant’s contention is that after a passage of eight months an order came to be passed by the said Officer on 30.3.2012 holding that the Appellant was not eligible for the exemptions postulated in the said Notification; a duty of Rs.3,45,629/- along with penalty of a like amount was imposed under Section 11A of the Act. We reiterate that in these Appeals we are not concerned with the legality of that Order.

5. The Appellant filed an Appeal against the said Adjudication Order in the Office of the Commissioner (Appeals), Customs and Central Excise (Meerut-II) asserting that consequent upon the initiation of the recovery proceedings by the Department, the Appellant learned for the first time, on 26.7.2012, of the passing of the aforesaid Order dated 30.3.2012. The case put forward is that the Adjudication Order dated 30.3.2012 appears to have been served on an employee of the Appellant, named Sanjay, who according to the Appellant was a ‘Kitchen boy’ employed on daily wages, and was avowedly not authorized to deal with communications to and from the Appellant; he had unauthorisedly affixed the stamp/seal of the Appellant on the some documents purporting to establish the service of the Adjudication Order, on 3.4.2012. Accepting the service to have been properly effected on the Appellant, the Commissioner (Appeals) dismissed the Appeal filed by the Appellant by an Order dated 28.9.2012 on the ground that it was time-barred. The period was held to have started to run from 3.4.2012 and since the Appeal had been filed on 22.8.2012 it was held to be not maintainable, being beyond the prescribed period of sixty days. The merits of the Appeal were not gone into at all.

6. This decision was challenged before the Customs Excise and Service Tax Appellate Tribunal, New Delhi, which accepted the Department’s version that the Adjudication Order had been duly served/delivered on the Appellant on 3.4.2012; since the Appeal came to be filed on 22.8.2012, the dismissal on the ground of limitation was held to be in consonance with the Act.

7. Thereafter, the Appellant approached the High Court of Uttarakhand at Nainital, which opined that an Appeal is a creature of statute and therefore its preferment beyond the period permitted by the relevant statute, reduced it to a futile exercise. Even this endeavour of the Appellant was of no avail to it as the High Court was of the opinion that there was no power to condone the delay beyond the statutory period. We may underscore the important facet of the Appeal, viz., that the Appeal filed by the Appellant has not been considered on merits at all. The Appellate Authorities as well as the High Court failed to keep in perspective the essential issue -namely -to ascertain the date from which limitation was to be calculated.

8. Learned counsel for the Appellant has consistently relied upon Secti