Case Law Details
Shree Developers Vs Commissioner CGST & Central Excise (CESTAT Ahmedabad)
CESTAT Ahmedabad held that the subsequent service of the order copy to the appellant is the date of communication of the order-in-original to the appellant.
Facts- The present appeal is directed against order-in-appeal whereby the Commissioner (Appeals) has rejected the appeal as time-barred on the ground that the order-in-original was received by authorised representative of the appellant on 02.11.2018 and the appeal was required to be filed within two months from 02.11.2018 i.e. by 01.01.2019 but the appeal was filed on 19.09.2022. Accordingly, the delay is more than three years and the same is time barred. The Commissioner (Appeals) also contended that since the service of order was made to authorised representative it is proper and legal service of order in terms of Section 37C therefore, the date of receipt of order by the authorised representative is to be taken as date of communication of the order. Being aggrieved by the impugned order-in-appeal the appellant filed the present appeal.
Conclusion- Held that the subsequent service of the order copy to the appellant on 22.07.2022 is the date of communication of the order-in-original to the appellant. Accordingly, the appeal filed on 19.09.2022 is well within the prescribed time limit of two months (60days), therefore, there is no delay in filing the appeal. Accordingly, the impugned order is set-aside and the appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merits of the case.
FULL TEXT OF THE CESTAT AHMEDABAD ORDER
This appeal is directed against order-in-appeal No. VAD-EXCUS-001-14-2023-24 dated 18.04.2023 whereby the learned Commissioner (Appeals) has rejected the appeal as time-barred on the ground that the order-in-original was received by authorised representative of the appellant on 02.11.2018 and the appeal was required to be filed within two months from 02.11.2018 i.e. by 01.01.2019 but the appeal was filed on 19.09.2022. Accordingly, the delay is more than three years and the same is time-barred. Learned Commissioner (Appeals) also contended that since the service of order was made to authorised representative it is proper and legal service of order in terms of Section 37C therefore, the date of receipt of order by the authorised representative is to be taken as date of communication of the order. Being aggrieved by the impugned order-in-appeal the appellant filed the present appeal.
2. Shri Jigar Shah, learned Counsel appearing on behalf of the appellant submits that though the order was served to authorised representative however, the authorised representative is not an authorised agent of the appellant therefore the service of the order to the authorised representative is not in consonance with Section 37C of Central Excise Act, 1944. He further submits that the authorised representative was appointed for a limited purpose to deal with legal matter of the case and not authorised to receive the order passed by the Adjudicating Authority. He submits that order was never served upon the appellant until 22.07.2022 when the recovery proceedings were initiated against the appellant. Thereafter upon the request of the appellant to provide copy of the order in respect of which recovery proceedings initiated, the appellant received copy of order-in-original dated 30.10.2018 on 22.07.2022. The appeal was filed on 19.09.2022 which is well within the limitation period of two months from the date of receipt of the order as prescribed under Section 85 (3A) of Finance Act, 1994. In support of his submission, he placed reliance on the following judgments:-
(a) Saral Wire Craft Pvt. Limited vs. CCE – 2017 (50) STR 237 (SC)
(b) Shridhar Construction vs. CST – 2023 (2) TMI 233
(c) B. Industries vs. CCE, Delhi – 2014 (313) E.L.T. 599 (Tri. Del.)
(d) K. Agarwal vs. CESTAT, New Delhi – 2008 (221) ELT 486
(e) NandaramHuntaram vs. CIT – 1959 (1) TMI 33 – ORISSA HIGH COURT
3. Shri P. Ganesan, learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
4. We have carefully considered the submissions made by both the sides and perused the record. We find that the statutory provisions for service of order is provided in Section 37C of Central Excise Act, 1944 which is applicable in service tax matters also, the same is reproduced below:-
Service of decisions, orders, summons, etc.
37C. (1) Any decision or order passed or any summons or notices 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 under the Central Boards of Revenue Act, 1963 (54 of 1963)] 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 courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in subsection (1).]
From the above Section it is clear that the service of the order shall be legal and proper only if it is served to the person for whom it is intended or authorised agent, if any.
5. In the present case, it is the contention of the learned Commissioner (Appeals) that the service of the order to the authorised representative of the appellant is in consonance with Section 37C. Firstly, the authorised representative in the present case is authorised only to deal with cases pending for adjudication before the Adjudicating Authority. After the adjudication, the order must be served to the person for whom it is intended for. It is admitted fact that the adjudication order was not served to the appellant however the same was served to the authorised representative. The authority letter given to the authorised representative is reproduced below:-
From the plain reading of the above authorization given to M/s. Kamleshkumar& Associates, Chartered Accountant, we find that authority is given for specific acts as prescribed under serial No. 1 to 3. On going through these acts prescribed therein, we find that there is no specific act of receiving the adjudication order in the authorization. The learned Commissioner (Appeals) construed that the authorised representative who received the order is authorised agent in terms of clause 3 of the authorization letter. From the reading of the said clause 3, we find that the clause 3 is related to the acts prescribed in serial No. 1 and 2 and according to which the authority is not given to the authorised representative for receiving the order. Moreover, as per Section 37C, the order can be served only either to the person for whom it is intended or his authorised agent. In our view, authorised legal representative cannot be equated with an authorised agent of the assessee. For this reason also service of the order to authorised representative i.e. Chartered Accountant dealing with the matter before the Adjudicating Authority is not legal and proper.
6. The judgment relied upon by the learned Counsel support their case. Considering the overall facts of the case, we are of the view that the subsequent service of the order copy to the appellant on 22.07.2022 is the date of communication of the order-in-original to the appellant. Accordingly, the appeal filed on 19.09.2022 is well within the prescribed time limit of two months (60days), therefore, there is no delay in filing the appeal. Accordingly the impugned order is set-aside and the appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merits of the case.
(Pronounced in the open court on 05.09.2023)
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