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TMI Blog2022 (3) TMI 321X X X X Extracts X X X X X X X X Extracts X X X X ..... m the date when the order is served upon the person concerned or his authorized agent. There is no dispute to the fact that the order passed by the Original Authority/Assessing Authority was issued against the petitioner and accordingly, description of the petitioner was styled as name of the parties in the order itself. Secondly, the order was required to be served upon the petitioner in terms of Clauses (1) and (3) of the instructions contained in the order dated 31- 01-2018 - Apparently, the respondent does not dispute that the order of the Original Authority/Assessing Authority was not served upon the petitioner and there is no material on record to show that the impugned order dated 31-01- 2018 was ever served upon the petitioner. On the contrary, on the strength of the endorsement made at the bottom of the order dated 31-01-2018, it is stated that the same was received by Manoj Kumar Shrivastava on 11-4-2018, who was the legal representative of the petitioner. Thus, apparently there was no proper service of the impugned order dated 31-01-2018 passed by the Original Authority/Assessing Authority upon the petitioner, so as to enable him to prefer an appeal before the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be presented within a further period of one month. The Commissioner of Central Excise (Appeals) further observed that the delay in filing the appeal is one month and 20 days and the same cannot be condoned. Thus, he dismissed the appeal being barred by limitation, vide order dated 31-8-2018. 4. The petitioner then assailed the order of the Commissioner of Central Excise (Appeals), dated 31-8-2018 by filing an appeal before the appellate Tribunal under Section 86 of the Act 1994. However, the same also faced dismissal vide order dated 12-03-2021. Both the orders passed by the Commissioner of Central Excise (Appeals) as well as the appellate Tribunal are subject-matter of challenge in the present writ petitions. 5. We have heard the learned counsel for the parties and bestowed our anxious consideration on their respective arguments advanced. 6. Learned counsel for the petitioners submits that the order dated 31- 01-2018 which was passed by the Original/Assessing Authority, was not served upon the petitioner and on the contrary, the same was communicated to one Manoj Kumar Shrivastava. It is stated in para 5.5 of the memo of writ petition that Manoj Kumar Shrivasta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (54 of 1963)], to the person for whom it is intended or his authorized agent, if any. 9. Learned counsel for the respondent further submitts that by virtue of Section 83 of the Act 1994, few provisions of the Act of 1944 are made applicable, including Section 37C(1)(a), which stipulates that tendering of the decision is completed when the order in question is served upon the person to whom it is intended or his authorized agent. 10 . Thus, while taking recourse to the terminology used in Section 37C(1)(a) of the Act of 1944, learned counsel appearing for the respondent submits that service upon Manoj Kumar Shrivastava, who was legal representative of the petitioner, was valid and in consonance with the provisions envisaged in Section 37C(1)(a) of the Act of 1944. 11 . Considering the rival submissions raised at the bar, it is apposite to refer first Section 85 of the Act 1994, which is extracted hereunder : SECTION 85. Appeals to the Commissioner of Central Excise (Appeals) .- (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Principal Commissioner of Central Excise or Commissioner of Central Excise may ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or penalty under this Chapter. The proviso attached to sub-section (3A) provides, that if the Commissioner of Central Excise (Appeals) is satisfied that the appeal was presented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act 1994, is three months. The provisions of Section 85 nowhere states that limitation shall commence from the date when the order is served upon the person concerned or his authorized agent. Moreover, Annexure-R/1, dated 31-12-2018 appended to the return filed by the respondent contains instructions. Clauses (1) and (3) of the said instructions being relevant for the present purpose, are extracted hereunder : 13. A perusal of the aforesaid order dated 31-01-2018, which was passed by the Original Authority/Assessing Authority, reveals that the copy of the order in question, is served upon the person to whom it has been issued. This is abundantly clear from a perusal of Clauses (1) (3) of the instructions contained in the impugned order. Moreove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the petitioner, as per he language employed under Section 37C(1)(a) of the Act of 1944. There is no document on record, or no material has been provided by the respondent to indicate that Manoj Kumar Shrivastava was ever authorized by the petitioner by some authority letter, to be the agent of the petitioner. Merely, on the basis of the e-mail address description of Manoj Kumar Shrivastava was mentioned at the time of submission of the application for registration. 18. Thus, apparently there was no proper service of the impugned order dated 31-01-2018 passed by the Original Authority/Assessing Authority upon the petitioner, so as to enable him to prefer an appeal before the Commissioner of Central Excise (Appeals) in accordance with Section 85 of the Act 1994. 19. The Hon ble Supreme Court in catena of decisions has categorically held, that the rules of limitation are not meant to destroy the rights of the parties. The Courts are only required to ensure that, a litigant has not to take resort to dilatory tactics and has approached the Court bonafidely. At this juncture it is useful to refer to the decision of the Apex Court rendered in the case of N. Balakrishnan v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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