2014 (1) TMI 1215 - HC - Central Excise

Rectification of mistake - Bar of limitation - Service of order on an unauthorised representative - Held that - it is evident that Vijay Kumar Agarwal was infact an authorised signatory of the appellant-assessee. The submission that it is only a legal practitioner who can be an authorised representative is misconceived. Section 35-Q (1) provides that any person who is entitled or required to appear before a Central Excise Officer or an Appellate Tribunal in connection with any proceedings under the Act, otherwise than when required to appear personally for examination on oath or affirmation, may appear through an authorised representative. Sub-section (2) defines the expression authorised representative for the purpose of sub-section (1) as inter alia being a regular employee. Section 35-Q, which has been relied upon by the appellant would, therefore, not carry its case any further. In the present case, service was effected on an authorised representative and the order of the Tribunal does not suffer from any error - The Commissioner (Appeals) was correct in holding that he could not have condoned a delay beyond the period of thirty days under the proviso to Section 35(1) - Following decision of M/s. Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur & Ors. 2007 (12) TMI 11 - SUPREME COURT OF INDIA - Decided against assessee.

Summary

Issues:
1. Appeal filed beyond the prescribed period.
2. Determination of authorized representative.
3. Application for rectification dismissed by Tribunal.
4. Interpretation of relevant legal provisions.

Analysis:

Issue 1:
The appeal was filed beyond the prescribed period of sixty days from the date of communication of the order to the assessee. The Commissioner (Appeals) dismissed the appeal, stating that it was filed late. The Tribunal upheld this decision. The Division Bench of the High Court allowed the appellant to file an application for rectification before the Tribunal.

Issue 2:
The main issue before the Tribunal was whether Vijay Agarwal was an authorized representative of the assessee. The appellant argued that an authorized representative should be a legal practitioner. However, documentary evidence showed that Vijay Agarwal was an authorized signatory of the appellant, as confirmed by acknowledgments and letters signed by him.

Issue 3:
An application for rectification was filed by the appellant, contending that the order was served on an employee who was not an authorized representative. The Tribunal dismissed this application, considering the evidence presented, which proved that Vijay Agarwal was indeed an authorized signatory of the appellant.

Issue 4:
The Court analyzed the relevant legal provisions, including Section 35(1) and Section 35-Q of the Central Excise Act, 1944. It was clarified that an authorized representative can include a regular employee, not just a legal practitioner. The Court referred to the Supreme Court judgment in M/s. Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur & Ors. to support its decision.

In conclusion, the Court found that the appellant's case lacked merit, as Vijay Agarwal was an authorized signatory of the appellant. The contention that only a legal practitioner could be an authorized representative was deemed misconceived. The appeal was dismissed, as it did not raise any substantial question of law.