CESTAT, NEW DELHI BENCH
Commissioner of Central Excise, Allahabad
Final Order No. ST/A/518 of 2012 – CUS.
Stay Order No. ST/S/ 802 of 2012 – CUS
Application No. Stay/3660 of 2011
Appeal No. ST/1745 of 2011
June 22, 2012Online GST Certification Course by TaxGuru & MSME- Click here to Join
Ms. Archana Wadhwa, Judicial Member
After hearing both the sides duly represented by Shri A.P. Mathur, ld. Advocate appearing for the appellants and Shri K.K Jaiswal, ld. AR appearing for the Revenue, we find that Commissioner(Appeals) has dismissed the appeal on the point of limitation by observing that the same stands filed after normal period of limitation as also after the condonable period of 30 days. It is seen that impugned order of original adjudicating authority was passed on 19.05.08 and the appeal was filed before Commissioner(Appeals) on 03.12.10.
2. As per the appellants, the impugned order dtd. 19.05.08 was not received by them. It is only when the Revenue came for recovery of the dues, they came to know about the passing of the said impugned order. Thereafter a letter was written on 25.09.10 to the Asstt. Commissioner, Allahabad praying for supply of the copy of the said order to the appellants. The copy of the said impugned order was served upon the appellant on 30.10.10 under the cover of office letter dtd. 26.10.10. As such submits the ld. Advocate that the appeal having been filed within a period of three months from the date of the receipt of the impugned order which required to be considered as having been filed within time.
3. Countering the above submission, Shri Jaiswal, ld. AR appearing for the Revenue produces on record an original acknowledgement receipt showing that the adjudication order was served on the appellants at its address on 18.06.08 and was duly received by Shri Virendra Yadav, who represented himself to be nephew of the appellant. Ld. AR also submits that as per para 47(2) of the Adjudication Manual for the Department, it has been specified that the adjudication order may be served through local ranger office and in that case, order should not be served by postal authorities. Accordingly it is the contention of Shri Jaiswal that the acknowledgement receipt under the dated signatures of Shri Virendra Yadav, appellant’s nephew, is proper and legal. If that be so, the appeal filed before Commissioner(Appeals) is barred by limitation.
4. In his rejoinder, Shri Mathur draws our attention to page 21 of the appeal vide which Revenue has placed on record documentary evidence showing receipt of the impugned order. He submits that the said page refers to two adjudication orders served upon two different persons on the same date. This reflects upon something fishy on the part of the Revenue.
5. Clarifying the above decision, Shri Jaiswal submits that as per Manual para, the orders are being served through local range office. First receipt shown on page 21 refers to different adjudication order served upon different party. This only strengthens the Revenue’s case that adjudication orders are being served personally on the assessees and the chronological orders reflected on the said page sugests that on the said date, two different orders were served upon two different assessees.
6. We have considered the submissions made by both the sides. We note that the law on the issue is settled by the Hon’ble Supreme Court’s order (reference may be made to Apex Court’s judgment in the case of Singh Enterprises v. CCE 2008 (221) E.L.T. 163 (S.C.))that Commissioner(Appeals) has no jurisdiction to condone any delay beyond the condonable period of 30 days. As such the only question which remains to be decided in the present appeal is as to whether the impugned order was served upon the assessees on 18.06.08 as contended by the ld. AR or on 30.10.10 as contended by the appellant.
7. After appreciating the evidences on record, we find that Revenue has placed on record copy of documentary evidences showing receipt of adjudication order by Shri Virendra Yadav. We find from the said acknowledgement that the adjudication order was served personally at the appellant’s residence address as 172/A, Ashok Nagar, Allahabad from the appeal format. We also note from the appeal format that the address of the appellant stands reflected as 172/A, Ashok Nagar, Allahabad. We also note that the said page produced on record by Revenue as a part of records maintained by them in the ordinary course of serving of adjudication orders to various assessees. As per para 47(2) of Adjudication Manual, the service of orders through local range offices is an approved mode of service. Ld. Advocate has not been able to produce on record anything contrary to the said documentary evidence produced on record showing service of the impugned order at the appellant’s address.
8. At this stage, we also note that the appellant had written a letter dtd. 25.09.10 to the Asstt. Commissioner which stands replied by him vide his letter dtd. 26.10.10. On going through the said letter, we find that the Asstt. Commissioner has clearly mentioned that the SCN was served personally to the appellant on 16.10.06 and the adjudication order was served on 18.06.08. It is only the photocopy of the adjudication order which again stands supplied to the appellant. As such the service of the photocopy of the adjudication order for the second time cannot be taken as relevant date of receipt of the order for the purposes of limitation. In as much as the Revenue has established that copy of the adjudication order was served upon personally at the appellant’s own address, we treat that date as date of receipt of the impugned order. If that be so, by applying the ratio of law declared by Hon’ble Supreme Court, we hold that the appeal filed beyond the normal period of limitation as also beyond the period of 30 days beyond such period is hopelessly barred by limitation.
9. Ld. Advocate also submits that in terms of Section 37C, the impugned order is required to be served either on the person concerned or his authorised representative. As Shri Virendra Yadav was not his authorised representative, the service by the Revenue cannot be held to be proper.
10. Countering the above submission, ld. AR submits that appellant was not registered as service tax payer and as such no authorised representative stands mentioned by him. As the impugned order was served at the residential address of the appellant, it has to be considered as proper service of the order.
11. We find force in the contention of ld. AR. Admittedly the evidence produced on record show service of order at the residential address of the appellant. Revenue cannot be expected to first establish the identity of the appellant or his authorised representative. In any case, no authorised representative stands specified by the appellant in departmental records. Further, the appellant has not made any efforts to establish that Shri Virendra Yadav, who received the impugned order at the appellant’s residential address itself by representing him to be his nephew, was specifically not authorised by the appellant to receive the said order.
12. In view of the foregoing discussions, we find no merits in the appellant’s contention that date of receipt of photocopy of the order, for the second time, should be considered as the relevant date for the purpose of limitation. The stay petition as also the appeal is accordingly rejected.