2024 (6) TMI 993 - AT - Service Tax

Authorization for filing an appeal on behalf of Company - Principal Officer - appeal dismissed on the ground that authorised signatory who filed the appeal, had not produced the Board Resolution copy and authorisation letter before him to file the appeal - HELD THAT - Appellant being a private limited company, who must have obtained registration from the Registrar of Companies by providing the name and designation of person who can sue or be sued for or on behalf of the Company, need not necessarily require a Board Resolution to represent the company every time the Company as a legal person and, therefore, the observation of the Commissioner (Appeals) with reference to Rule, 3(2)(C) of the Central Excise Appeals Rules, 2001 that prescribes for verification to be made by Principal Officer filing the appeal can t be said to have made it obligatory for the Principal Officer to submit Board Resolution alongwith his/her signature. Be that as it may, as could be revealed from appeal memo, learned Commissioner (Appeals) had never sought copy of such Board Resolution though, it had specifically asked the Appellant to submit notarised affidavit of the synopsis of appeal and notarised letter of authority, which Appellant stated to have filed as per attachment no. 6 7 respectively. This being the facts on record and having regard to the fact that Section 35(A)(4) dictates that the order of the Commissioner disposing of the appeal shall state the points for determination, the decision their on and the reason for such decision and the same provision being equally applicable to service tax matters would also be applied to this case, it is a fit case to allow the early hearing application and taking consent of both the sides it is considered it proper to remand the matter back to the commissioner to decide the appeal on merit as per provision contained in Section 35(A)(4) of Central Excise Act, applicable to the service tax matters, in view of Sub- Section 5 of section 85 of the Finance Act, 1994. Appeal allowed by way of remand.

Summary

Issues:
- Interpretation of Section 35(A)(4) of the Central Excise Act in the context of Service Tax matters.
- Requirement of Board Resolution for filing appeal on behalf of a private limited company.
- Applicability of Rule 8(3) of CESTAT (Procedure) Rules 1982 in appeal process.
- Compliance with provisions of Section 85 of the Finance Act, 1994 in filing appeals.
- Consideration of points for determination, decision, and reasons in appeal orders.

Analysis:

The judgment deals with the interpretation of Section 35(A)(4) of the Central Excise Act concerning Service Tax matters. The Appellant argued that the dismissal of their appeal by the Commissioner (Appeals) for not producing a Board Resolution was unsustainable in law. They contended that the provision in Section 35(A)(4) must be adhered to, and the appeal should be reheard to ensure natural justice. The Appellant highlighted that they had already faced delays in the judicial process, dating back to a show-cause notice issued in 2021. They requested an out-of-turn hearing to expedite the resolution of the matter.

The judgment further delves into the requirement of a Board Resolution for filing an appeal on behalf of a private limited company. The Appellant's Counsel argued that as a legal person, the company did not necessarily need a Board Resolution every time to represent itself. The Commissioner (Appeals) had dismissed the appeal based on Rule 8(3) of CESTAT (Procedure) Rules 1982, which deals with the content of the memorandum of appeal. However, the judgment emphasized that the enabling provision in Section 85 of the Finance Act, 1994, allows any person aggrieved by a decision to file an appeal, without mandating a Board Resolution for representation.

Moreover, the judgment analyzed the applicability of Rule 8(3) of CESTAT (Procedure) Rules 1982 in the appeal process. It clarified that the said rule pertains to filing before the Tribunal and not the Commissioner (Appeals). The judgment highlighted that the memorandum of appeal can be signed by any Appellant/Applicant or Respondent, with provisions for substitution by successors in interest. It underscored that the focus should be on Section 85 of the Finance Act, 1994, which governs the filing of appeals by aggrieved parties.

Additionally, the judgment discussed the importance of compliance with the provisions of Section 85 of the Finance Act, 1994, in filing appeals. It emphasized that the order disposing of an appeal should state the points for determination, decision, and reasons, as mandated by Section 35(A)(4). The judgment deemed it necessary to remand the matter back to the Commissioner to decide the appeal on its merits, in line with the provisions of the Central Excise Act applicable to Service Tax matters.

In conclusion, the judgment allowed the early hearing application and the appeal, setting aside the order of the Commissioner of CGST & Central Excise (Appeals-II), Mumbai. It underscored the need for adherence to procedural requirements and the consideration of points for determination, decision, and reasons in appeal orders to ensure a fair and just resolution of the matter.