2014 (2) TMI 440 - AT - Service Tax

Condonation of Delay - deemed service of order - appeal filed after initiation of recovery proceedings - Held that - order-in-Appeal dated 18.07.12 was delivered by Regd. A/D, which was returned back as undelivered as per postal remarks. Further, that the order was served on the Ld. Advocate on 01.08.2012. Furthermore, the order was displayed in the notice board as required under the law. A perusal of Section 37C (a) indicates that in case the decision is tendered to the person or his authorised agent, the same shall be deemed to be served in accordance with the Act. In the present case, the Advocate of the appellant who is authorised agent within the meaning of Section 37C, being present on the date of the order, the service of the order shall be deemed to be made to the authorised agent on the same date. Ld. Advocate received the order dated 1.8.2012 and also informed the applicant in the month of November, 2012, to file appeal. The date of communication of the order on 01.08.2012 to the Ld. Advocate would be treated as the date of receipt of the Order. The applicant had not taken any initiative despite the advise of the Ld. Advocate. In our considered view, there is a gross negligence and inaction on the part of the applicant for delay in filing the appeal. - Delay not condoned.

Summary

Issues:
1. Condonation of delay in filing the appeal for 95 days.

Analysis:
The applicant filed an application seeking condonation of delay for filing the appeal. The applicant's counsel explained the reasons for the delay, stating that they had not received the impugned order despite requesting it from the Commissioner (Appeals). The Ld. Advocate confirmed that the appeal was filed based on the copy of the order served on them on 01.08.2012. The Revenue presented a letter indicating that the impugned order was delivered by Registered AD but returned undelivered. The Tribunal noted that the order was served on the Ld. Advocate on 01.08.2012, and the applicant filed the appeal on 04.02.2013 based on this order. Citing a decision by the Allahabad High Court, the Tribunal emphasized that communication of the order to the authorized agent is sufficient for service under relevant legal provisions.

2. Legal provisions regarding service of orders and communication to authorized agents.

Analysis:
The Tribunal referred to Section 37C of the Central Excise Act, 1944, which outlines the service of decisions, orders, summons, etc. The Tribunal highlighted that according to the Act, if the decision is tendered to the authorized agent, it is deemed to be served. Furthermore, the Tribunal discussed Rule 13 and Rule 35 of the CESTAT (Procedure) Rules, 1982, emphasizing that communication of the order to the authorized agent is considered sufficient. The Tribunal concluded that when the Ld. Advocate received the order on 01.08.2012 and advised the applicant to file the appeal in November 2012, it constituted effective communication of the order.

3. Dismissal of application for condonation of delay and subsequent dismissal of appeal.

Analysis:
After considering the submissions, the Tribunal found that the applicant had shown gross negligence and inaction in filing the appeal, despite the advice from the Ld. Advocate. The Tribunal determined that the date of communication of the order to the Ld. Advocate on 01.08.2012 should be considered as the date of receipt of the order. Consequently, the Tribunal dismissed the application for condonation of delay, leading to the dismissal of the appeal and stay application. The decision was dictated and pronounced in open court, emphasizing the importance of timely action and adherence to legal procedures in filing appeals.