2023 (9) TMI 300 - AT - Service Tax

Condonation of delay in filing appeal - proper service of order in terms of Section 37C of Central Excise Act, 1944 or not - HELD THAT - From the plain reading of the authorization given to M/s. Kamleshkumar Associates, Chartered Accountant, it is found that authority is given for specific acts as prescribed under serial No. 1 to 3. On going through applicable acts, it is found 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, it is found 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. The 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. 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 - the appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merits of the case.

Summary

Issues involved: Appeal against rejection of appeal as time-barred due to delay in filing within the prescribed period.

Summary:

Issue 1: Service of order to authorised representative and time-barred appeal

The appeal challenged the rejection of the appeal as time-barred due to a delay of more than three years in filing. The Commissioner (Appeals) contended that since the order was received by the authorised representative, it constituted proper service in accordance with Section 37C of the Central Excise Act, 1944. The appellant argued that the authorised representative was not authorized to receive the order and that the order was only received by the appellant after recovery proceedings were initiated. The appellant relied on various judgments to support their case.

Issue 2: Interpretation of Section 37C and authority of authorised representative

The statutory provisions for service of orders under Section 37C of the Central Excise Act, 1944 were examined. It was highlighted that service of the order should be to the person for whom it is intended or their authorized agent. The contention was made that the authorised representative in this case was not authorized to receive the order as per the specific acts prescribed in the authorization letter. The judgment emphasized the distinction between an authorized legal representative and an authorized agent of the assessee.

Conclusion:

The Tribunal found that the service of the order to the authorised representative was not legal and proper as per Section 37C. The subsequent service of the order copy to the appellant was considered as the date of communication of the order, leading to the appeal being filed within the prescribed time limit. Consequently, the impugned order was set aside, and the appeal was allowed for a fresh order on the merits of the case.