Shri Parvez Ahmad Ansari v. Commissioner of Central Excise & CGST, Allahabad
CESTAT, Allahabad| Service Tax Appeal No. 70245 of 2026 | Final Order No. 70241/2026 | Decided on 28.07.2026 | Coram: P.K. Choudhary (Judicial Member)
Background:
The Appellant challenged the Order-in-Appeal dated 05.06.2024 whereby the Commissioner (Appeals) dismissed the appeal solely on the ground of limitation without examining the merits. The Order-in-Original dated 11.03.2023 had been passed ex parte. Though it was initially dispatched by registered post, it was returned undelivered. The Department thereafter claimed to have served the order by affixing it on the Appellant's premises on 27.04.2023. The Appellant contended that he never received the Show Cause Notice, hearing notices, or the Order-in-Original and first became aware of the adjudication only on 30.01.2024 when Form GST DRC-07A was uploaded on the GST portal. After obtaining a copy of the order, he filed the statutory appeal on 28.02.2024.
Issues:
(i) Whether the Order-in-Original was validly served upon the Appellant by affixture in terms of Section 37C of the Central Excise Act;
(ii) Whether the appeal filed on 28.02.2024 was barred by limitation; and
(iii) Whether the Commissioner (Appeals) was justified in rejecting the appeal without examining the merits.
Tribunal's Reasoning and Decision (Paras 6–11)
The Tribunal observed that the Order-in-Original sent through registered post had admittedly been returned undelivered. The Department relied upon a Panchanama dated 27.04.2023 to establish service by affixture. However, on examination of the Panchanama, the Tribunal found that the alleged affixture had not taken place at the Appellant's factory, place of business, or residence. Instead, the Panchanama itself recorded that the premises did not belong to the Appellant and that no one at the location knew either the Appellant or his firm.
The Tribunal further held that the Panchanama suffered from serious procedural defects. The two independent witnesses were from Faizabad and Jaunpur, rather than from the locality where the affixture was allegedly carried out. The Department failed to explain why local witnesses were not associated with the proceedings, thereby casting doubt on the genuineness of the alleged service.
Interpreting Section 37C of the Central Excise Act, the Tribunal held that service by affixture is legally valid only when the order is affixed at the assessee's factory, business premises, or residence. Since the order was affixed at a place unconnected with the Appellant, the statutory requirements of Section 37C were not satisfied. Consequently, the Tribunal held that the Order-in-Original could not be treated as having been communicated on 27.04.2023.
The Tribunal accepted the Appellant's contention that the first effective communication of the adjudication order occurred only on 30.01.2024, when the Appellant obtained a copy after becoming aware of the demand through the GST portal. As the appeal was filed on 28.02.2024, it was within the prescribed statutory period and could not be dismissed as time-barred.
Since the Commissioner (Appeals) had rejected the appeal solely on limitation without examining the substantive issues, the Tribunal considered it appropriate to remand the matter for fresh adjudication.
Observations and decision.
The appeal was allowed by way of remand, and the impugned order rejecting the appeal as barred by limitation was set aside. The Tribunal held that:
1. The alleged service of the Order-in-Original by affixture did not satisfy the mandatory requirements of Section 37C of the Central Excise Act.
2. Affixture at premises which were neither the Appellant's factory, business premises, nor residence does not constitute valid service.
3. The Panchanama relied upon by the Department lacked credibility, particularly because the witnesses were not local and the premises were unrelated to the Appellant.
4. The date of communication of the Order-in-Original was 30.01.2024, when the Appellant actually received the order.
5. The appeal filed on 28.02.2024 was within the statutory limitation period.
6. The matter was sent back to the Adjudicating Authority for a fresh decision on the merits of the case, and the Appellant was directed to cooperate in the proceedings.