2014 (7) TMI 538 - AT - Service Tax

Appeal before commissioner (Appeals) - appeal was singed by the brother of assessee - non delivery of order to the assessee - Non observance of procedure prescribed in Section 37C - it is a fact, admitted by the Appellant himself, that he was neither residing at the old address nor having any contact with the persons residing there and it was for this reason that the pasted O-I-O did not come to his knowledge - Held that - Commissioner (appeal s) observation are in the nature of assumption and presumption. Even if the sending of the order would not have resulted in any other situation, as observed by Commissioner (Appeals), even then the Revenue was required to follow due procedure of law. It is not open to the Revenue to deviate from the law laid down under procedure of Rule 37C, even though following of the same would not have served any purpose. It has to be kept in mind that all the creations of the statue are required to follow the law in deciding the legal issues and there is no scope for any personal assumptive conclusions. As the appellant received the order in July and during the relevant period, he was in jail, the appeal memorandum was signed by his brother - If the appellant was able to give the authorization to his brother, he could have very well signed the appeal papers himself. As the appellant, during the relevant period was in jail, as supported by his affidavit, filing of appeal under the signatures of his brother, may not be a serious objection, inasmuch as the same is a rectifiable defect and the applicant can sign the last page of the appeal, even subsequently and can rectify the defect. The procedure prescribed under the Manual is not procedure prescribed by the legislation and is meant for convenience of litigants and in the given case can be deviated from - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Non-observance of procedure under Section 37C of Central Excise Act, 1944 in pasting the order at the old address.
2. Validity of the Commissioner (Appeals) order dismissing the appeal on limitation grounds.
3. Authorization of appeal papers by the appellant's brother during the relevant period when the appellant was in jail.

Analysis:

Issue 1: Non-observance of procedure under Section 37C
The Commissioner (Appeals) dismissed the appeal on the grounds of limitation, noting that the procedure under Section 37C was not followed in pasting the order at the old address. However, the Tribunal disagreed with this observation, emphasizing that even if sending the order by registered post would not have changed the situation, the Revenue was still obligated to follow the due procedure of law. The Tribunal highlighted that deviating from the prescribed procedure is not permissible, regardless of the perceived outcome. It stressed that legal issues must be decided strictly in accordance with the law without room for personal assumptions or conclusions.

Issue 2: Validity of the Commissioner (Appeals) order
The appellant contended that due to being in jail during the relevant period, they only became aware of the order upon receipt of recovery proceedings. The appeal was filed promptly after receiving the order. The Tribunal found the objection raised by the learned Jt. CDR regarding the brother's authorization to sign the appeal papers unfounded. Given the circumstances of the appellant's incarceration during the relevant period, the Tribunal considered the use of the brother's signature as a rectifiable defect, allowing the appellant to subsequently sign the appeal papers to rectify the issue. It clarified that the procedure outlined in the Manual is not statutory but rather for litigants' convenience and can be deviated from as necessary.

Issue 3: Authorization of appeal papers
The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision on the issues of limitations and signatures. It directed the Commissioner to reconsider the disputed issues in light of the Tribunal's observations and afford the appellant an opportunity to present their case effectively. The Tribunal's decision aimed to ensure a fair and thorough examination of the issues at hand, particularly concerning the appellant's authorization process during their period of incarceration.