M/S. Thayar Tours and Travels Vs. Cce, St Trichy - Court Judgment

SooperKanoon Citationsooperkanoon.com/1150375
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Chennai
Decided OnJan-06-2014
Case NumberST/COD/40192 of 13 & ST/40209 of 2013 (Arising Out of Order-in-Appeal No. 144 of 2012 dated 18.07.2012, passed by the Commissioner of Central Excise (Appeals), Chennai).
JudgeTHE HONOURABLE MR. P.K. DAS, JUDICIAL MEMBER & THE HONOURABLE MR. MATHEW JOHN, TECHNICAL MEMBER
AppellantM/S. Thayar Tours and Travels
RespondentCce, St Trichy
Excerpt:
p.k. das, j. 1. the applicant filed this application for condonation of delay of filing the appeal for 95 days.2. the ld. advocate on behalf of the applicant reiterated the reasons explained in the application.   the relevant portion of the application is reproduced as under:- 2.0.the counsels of the appellant, m/s. swamy associates, who represented the appellant before the commissioner (appeals) appeared to have received the impugned order on 01.08.2012.  during november 2012, the counsels have contacted the appellant (shri p. balasubramanian) and enquired about the filing of appeal before tribunal, chennai.  it was informed by the appellant that they have not received the impugned order itself.  in view of the above, the appellant vide their letter dated 20.11.2012 requested the commissioner (appeals), trichy to provide a copy of the impugned order (page no. 51 of this appeal), which was also acknowledged by the superintendent.  but the appellant has not received any communication from office of the commissioner (appeals), trichy. 3.0.on 24.11.2012, i.e., after the submission of the above, letter, the appellant has received a letter from the jurisdictional assistant commissioner of central excise, directing the appellant to pay the confirmed demands.  though the said letter was dated 15.11.2012, the same was received by the appellant only on 24.11.2012 (page nos. 52 of this paper book).  in this regard, the appellant wish to submit that when the above mentioned communication letter dated 15.11.2012 was served to the appellant on the very same address, it is known as to why the impugned order is not served to the appellant before or even after their request for copy of the same. 2. on a query from the bench, the ld. advocate submits that even after taking initiative the applicant failed to obtain the copy of the impugned order from the office of the commissioner (appeals) and  the applicant filed this appeal only on the basis of the copy of  the order served on the ld. advocate on 01.08.2012.3. the ld. authorized representative on behalf of the revenue places a copy of the letter dated 18.07.2013 of the superintendent of appeals in respect of service of the impugned order.  it is seen from the said letter that the impugned order was delivered to the applicant by registered ad dated 27.07.2012, which was returned with a remark that door locked 1st intimation on 28.07.2012.  intimation served on 30.07.2012 was returned undelivered with a remark on the back side of the letter as unclaimed/returned to sender/remitter.  it is also seen from the said letter that the impugned order was displayed in the hqtrs. notice board. 4. after considering the submissions of both sides, we find that the impugned 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.  there is no dispute that on 01.08.2012, the impugned order was served on the ld. advocate, who appeared before the commissioner (appeals) and on 04.02.2013 the applicant filed the appeal on the basis of the order served on the ld. advocate.  the honble allahabad high court in the case of nanumal glass works vs. cce, kanpur 2012 (284) elt 15 (all.), held that communication of order to authorized agent is sufficient for service under section 37c of the central excise act, 1944, read with rules 13 and 35 of the cestat (procedure) rules, 1982.  the relevant portion of the said decision is reproduced below:- 11. it is relevant to refer to the provisions of section 37c of the central excise act, 1944 which provides for service of decisions, orders, summons etc. section 37c is quoted below:- 37c. service of decisions, orders, summons, etc. - (1) any decision or order passed or any summons or notices issued under this act or the rules made thereunder, shall be served, - (a). by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any; (b). if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c). if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice. every decision or order passed or any summons or notice (2) issued under this act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1). 12. 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. 13. it is also relevant to refer to the customs excise and service tax appellate tribunal (procedure) rules, 1982. rule 13 of the said rules provides for document authorising representative to be attached to the memorandum of appeal. rule 13 of the said rules is quoted below :- rule 13.?document authorising representative to be attached to the memorandum of appeal. - where the parties to an appeal or application are being represented in such appeal or application by authorised representatives, the documents authorising such representatives to appear on their behalf shall be appended to the memorandum of appeal, application or memorandum of cross- objections if they are signed by the authorised representatives and the said documents shall indicate clearly the status of the authorised representatives as to whether they are relatives or regular employees of the parties and the details of the relationship or employment or, in cases where they are not relatives or regular employees, their qualifications to act as authorised representatives under the acts or, in the case of a person referred to in rule 2(c)(ii), particulars of the notification by which he has been appointed: provided that where the authorised representative is a legal practitioner, such document of authorisation shall be a duly executed vakalatnama. 14. with regard to legal practitioner execution of vakalatnama is authorisation for the purposes of the rules. rule 35 of the 1982 rules provides that an order passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondents either in person or by registered post. rule 35 is quoted below:- communication rule 35. of orders to parties. - any order passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondent either in person or by registered post. 15. section 37c of the 1994 act read with rules 13 and 35 of the 1982 rules clearly indicate that communication of the order to authorised agent of a person is sufficient communication. thus when the order was passed by the tribunal on 22nd july, 2010 in presence of counsel of the appellant, the order shall also be deemed to be communicated on the same date and the submission of the appellant that unless the order is received by the appellant in person, the order shall not be treated to be communicated to the appellant, cannot be accepted. in the present case, we find that the ld. advocate received the order dated 1.8.2012 and also informed the applicant in the month of november, 2012, to file appeal.5. in such circumstances, 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. accordingly, the application for condonation of delay in filing the appeal is dismissed.  consequently, the appeal and stay application are also dismissed.
Judgment:

P.K. Das, J.

1. The applicant filed this application for condonation of delay of filing the appeal for 95 days.2. The Ld. Advocate on behalf of the applicant reiterated the reasons explained in the application.   The relevant portion of the application is reproduced as under:-

2.0.The counsels of the appellant, M/s. Swamy Associates, who represented the appellant before the Commissioner (Appeals) appeared to have received the impugned order on 01.08.2012.  During November 2012, the counsels have contacted the appellant (Shri P. Balasubramanian) and enquired about the filing of appeal before Tribunal, Chennai.  It was informed by the appellant that they have not received the impugned order itself.  In view of the above, the appellant vide their letter dated 20.11.2012 requested the Commissioner (Appeals), Trichy to provide a copy of the impugned order (Page No. 51 of this appeal), which was also acknowledged by the Superintendent.  But the appellant has not received any communication from office of the Commissioner (Appeals), Trichy.

3.0.On 24.11.2012, i.e., after the submission of the above, letter, the appellant has received a letter from the jurisdictional Assistant Commissioner of Central Excise, directing the appellant to pay the confirmed demands.  Though the said letter was dated 15.11.2012, the same was received by the appellant only on 24.11.2012 (Page Nos. 52 of this paper book).  In this regard, the appellant wish to submit that when the above mentioned communication letter dated 15.11.2012 was served to the appellant on the very same address, it is known as to why the impugned order is not served to the appellant before or even after their request for copy of the same.

2. On a query from the Bench, the Ld. Advocate submits that even after taking initiative the applicant failed to obtain the copy of the impugned order from the office of the Commissioner (Appeals) and  the applicant filed this appeal only on the basis of the copy of  the order served on the Ld. Advocate on 01.08.2012.3. The Ld. Authorized Representative on behalf of the Revenue places a copy of the letter dated 18.07.2013 of the Superintendent of Appeals in respect of service of the impugned order.  It is seen from the said letter that the impugned order was delivered to the applicant by Registered AD dated 27.07.2012, which was returned with a remark that Door locked 1st intimation on 28.07.2012.  Intimation served on 30.07.2012 was returned undelivered with a remark on the back side of the letter as unclaimed/returned to Sender/Remitter.  It is also seen from the said letter that the impugned order was displayed in the Hqtrs. Notice Board.

4. After considering the submissions of both sides, we find that the impugned 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.  There is no dispute that on 01.08.2012, the impugned order was served on the Ld. Advocate, who appeared before the Commissioner (Appeals) and on 04.02.2013 the applicant filed the appeal on the basis of the order served on the Ld. Advocate.  The Honble Allahabad High court in the case of Nanumal Glass Works Vs. CCE, Kanpur 2012 (284) ELT 15 (All.), held that communication of order to authorized agent is sufficient for service under Section 37C of the Central Excise Act, 1944, read with Rules 13 and 35 of the CESTAT (Procedure) Rules, 1982.  The relevant portion of the said decision is reproduced below:-

11. It is relevant to refer to the provisions of Section 37C of the Central Excise Act, 1944 which provides for service of decisions, orders, summons etc. Section 37C is quoted below:-

37C. Service of decisions, orders, summons, etc. - (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served, -

(a). by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due, to the person for whom it is intended or his authorised agent, if any;

(b). if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;

(c). if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice.

Every decision or order passed or any summons or notice (2) issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1).

12. 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.

13. It is also relevant to refer to the Customs Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. Rule 13 of the said Rules provides for document authorising representative to be attached to the memorandum of appeal. Rule 13 of the said Rules is quoted below :-

Rule 13.?Document authorising representative to be attached to the memorandum of appeal. - Where the parties to an appeal or application are being represented in such appeal or application by authorised representatives, the documents authorising such representatives to appear on their behalf shall be appended to the memorandum of appeal, application or memorandum of cross- objections if they are signed by the authorised representatives and the said documents shall indicate clearly the status of the authorised representatives as to whether they are relatives or regular employees of the parties and the details of the relationship or employment or, in cases where they are not relatives or regular employees, their qualifications to act as authorised representatives under the Acts or, in the case of a person referred to in rule 2(c)(ii), particulars of the notification by which he has been appointed:

Provided that where the authorised representative is a legal practitioner, such document of authorisation shall be a duly executed vakalatnama.

14. With regard to legal practitioner execution of vakalatnama is authorisation for the purposes of the Rules. Rule 35 of the 1982 Rules provides that an order passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondents either in person or by registered post. Rule 35 is quoted below:-

Communication Rule 35. of orders to parties. - Any order passed in an appeal or on an application shall be communicated to the appellant or the applicant and to the respondent either in person or by registered post.

15. Section 37C of the 1994 Act read with Rules 13 and 35 of the 1982 Rules clearly indicate that communication of the order to authorised agent of a person is sufficient communication. Thus when the order was passed by the Tribunal on 22nd July, 2010 in presence of counsel of the appellant, the order shall also be deemed to be communicated on the same date and the submission of the appellant that unless the order is received by the appellant in person, the order shall not be treated to be communicated to the appellant, cannot be accepted.

In the present case, we find that the Ld. Advocate received the order dated 1.8.2012 and also informed the applicant in the month of November, 2012, to file appeal.5. In such circumstances, 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. Accordingly, the application for condonation of delay in filing the appeal is dismissed.  Consequently, the appeal and stay application are also dismissed.