JUDGMENT By the Court.—Heard Sri Manish Goyal, learned counsel for the appellant and Mohd. Munish, learned counsel for the respondent. The appellant is in appeal against the order of the learned Tribunal dated 19.11.2010, whereby the order of the Commissioner Central Excise (Appeals) dated 23.3.2010, dismissing the appeal filed by the appellant beyond the prescribed period of limitation has been upheld. The learned Tribunal proceeded to hold that the respondent have been able to establish that the copy of original order was served on the appellant on 25.2.2009 and not on 04.05.2009, as contended on behalf of the appellant herein. Reliance was placed on an entry made in the diary of the department employee, which reads as under : "9.30/12.00 Hrs. PAR NAINI SE M/S. TRIVENI GLASS SHEET KE MAIN OFFICE ME JAKAR PATRANK SANKHYA V (30) Dem/82/06 dated 143-23.1.09 KO RECEIVE KARWAKAR VAPAS TAMEEL." The number given, therefore, is V (30) Dem/82/06 dated 143-23.1.09. 2. Learned counsel for the appellant draws our attention that the Order-in-Original was numbered as 313-Dem-/2008 dated 15.12.2008 and, therefore, what was claimed by the respondent to have been served upon the appellant, was not the relevant order, if assuming it had been served. It is submitted that the learned Tribunal did not consider this aspect of the matter and, therefore, the finding recorded by the Tribunal is clearly perverse and contrary to the record. It is further submitted that considering Section 37-C of the Central Excise Act, 1944, service has to be effected in the manner set out in the Act. Therefore, this is a question, which requires consideration. 3. In the light of that, this appeal is admitted on the following substantial questions of law : "A. Whether the Tribunal failed to exercise the jurisdiction vested in it by not considering the provision of Section 37C of the Central Excise Act, 1944 before recording the conclusion about the date of service of order upon the appellant? B. Whether the department is required to serve the order-in-original in the manner prescribed under Section 37C of the Act and is also required to prove due service in accordance with the said provision?" 4. B. Whether the department is required to serve the order-in-original in the manner prescribed under Section 37C of the Act and is also required to prove due service in accordance with the said provision?" 4. Section 37-C of the Act reads as under : "37-C. 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 acknowledgement due, to the person for whom it is intended or his authorised agent, if any; (b) if the decision, 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; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. 2. Every decision or order passed or any summons or notice issued under this Act or the Rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1)." 5. A perusal of these provisions would, therefore, show that the decision, order, summons or notice shall be deemed to have been served, if it has been served in the manner as set out in sub-section (1) of Section 37-C of the Act. In the instant case, the stand of the Department is that the order-in-original was served in the manner set out in Section 37-C (1) (a) of the Act by tendering the decision, order, summons or notice. Earlier it was sought to be sent by Registered Post at the Factory premises of the appellant. The record shows that it could not be served as it was returned with the postal endorsement as 'the Factory closed'. Earlier it was sought to be sent by Registered Post at the Factory premises of the appellant. The record shows that it could not be served as it was returned with the postal endorsement as 'the Factory closed'. Both the Commissioner (Appeals) and the learned Tribunal have proceeded on the footing that the order-in-original was served on the appellant herein by personal service relying on the entries made by an employee of the respondent herein. Both the Commissioner (Appeals) as well as the learned Tribunal have further recorded a finding that the respondent was not able to show any proof of service on the appellant. 6. The question is, when there are two versions, one of the Department and the other of the Assessee, what should be the test to be applied by the Court or Tribunal in the matter considering the effect of service, which is not established by any documentary evidence to have been served on the appellant except for a noting made by an employee of the respondent themselves. 7. Both the Commissioner (Appeals) as well as the learned Tribunal have not noted the discrepancy in the number of the order, which has been served, nor any explanation has been given in respect of the same. Even, therefore, if the versions of the respondents are to be accepted, that some communication was served on the appellant on the date as set out in the findings recorded by the Commissioner (Appeals) and the learned Tribunal, yet it cannot be said that it is the order or decision as contemplated under Section 37-C (1) (a) of the Act, which was served by the respondents. The limitation would only commence or start on tendering the decision or order in the manner set out therein. In the instant case, as recorded earlier, the number of the decision or order is different from the decision or order, which was served by the respondents on the appellant. This has not been explained by the respondents. In our opinion, therefore, as the respondents have failed to establish that they have served the order or decision in the manner required under Section 37-C (1) (a) of the Act, there is service on 25.2.2009. It is no doubt true that in the matter of service of notice, it being merely procedural, a party has to establish the prejudice occasioned on account of non-service in the matter. It is no doubt true that in the matter of service of notice, it being merely procedural, a party has to establish the prejudice occasioned on account of non-service in the matter. However, in our opinion, when the matter arises as to the right of a party in the form of extinguishment of remedy of an appeal, then such provision, though procedural, must be strictly construed or in other words, the strict mandate of the language of the Section must be complied with. Furthermore, between taking a view which permits a party to pursue his remedy and which defeats the right to such remedy, the law must lean in favour of the person, who comes to the Court to pursue his remedy, rather than the person seeking to defeat the remedy, on technicalities. 8. We are clearly of the opinion that both, the Commissioner (Appeals) and the learned Tribunal misdirected themselves on the issue of recording a finding as to the date of service of the order-in-original on the appellant herein. 9. For the aforesaid reasons, the impugned orders are set aside. 10. The Commissioner (Appeals) is directed to hear the appeal on merit. Questions A and B are answered in the affirmative. 11. Appeal is accordingly, disposed of. —————