Service Of Order On Representative Authorized To Appear Before Excise Department Is Valid: CESTAT Bengaluru

The Bangalore Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT), by a majority ruling, has held that when an adjudication order is received by an authorized representative of an assessee, it amounts to valid service under Section 37C of the Central Excise Act, 1944. The Tribunal held that the limitation period for filing an appeal begins from the date the representative receives the order.

The case arose from a refund claim filed by Simplilearn Solutions Pvt. Ltd. under Rule 5 of the CENVAT Credit Rules, 2004. The claim was rejected by the adjudicating authority. When the company challenged that decision, the Commissioner (Appeals) dismissed its appeal on the ground that it had been filed beyond the prescribed time limit.

Before the tribunal, the taxpayer company contended that it had received the certified copy of the Order-in-Original only on March 15, 2018. It argued that its appeal filed on May 9, 2018 was therefore within the prescribed period.

The Revenue, however, produced records showing that Shri K. Siva Prasad, an authorized representative who had appeared during the adjudication proceedings on behalf of the company, had acknowledged receipt of the original order on January 2, 2018.

A difference of opinion emerged between the Members of the bench. Judicial Member P.A. Augustian took the view that there was no evidence that Siva Prasad had been specifically authorized to receive orders on behalf of the company.

Observing that an assessee's statutory right of appeal should not be defeated merely because an employee authorized to attend a personal hearing had received the order, he proposed remanding the matter to the Commissioner (Appeals) for consideration on merits.

On the other hand, Technical Member R. Bhagya Devi held that receipt of the order by the authorized representative amounted to valid service under Section 37C and that the appeal filed on May 9, 2018 was beyond both the statutory period and the condonable period.

She said, "Since, the order has been received by the authorised representative who appeared for the personal hearing before the Asst. Commissioner it is served on the appellant as per the provisions laid down under Section 37(C) of the Central Excise Act, 1944. Accordingly, there cannot be any dispute that the order was not received on 02.01.2018."

The matter was referred to Judicial Member Dr. D.M. Misra as the Third Member. Agreeing with the Technical Member, Dr. Misra held that a person authorized to appear and represent an assessee before departmental authorities cannot be considered unauthorized for receiving adjudication orders.

He observed that requiring a separate authorization solely for receipt of orders would result in an absurd interpretation of Section 37C. He noted that orders are often pronounced and delivered to the representatives who appear on behalf of parties.

"It is incorrect to say that a person who can appear for and on behalf of the appellant which includes his relative or regular employee and authorised to argue the matter on behalf of the appellant accepting or modifying any of the relief proposed to be allowed by the authority before whom they appear, cannot be construed that he is not authorised to receive the order after the adjudication proceedings are over. a separate authorization is required to receive the Order in compliance with the provisions of Section 37C of CEA, 1944. Such an interpretation of the Section 37C will result in absurdity.", Dr. Misra ruled.

The Third Member also noted that the acknowledgment specifically recorded receipt of the "original order" on January 2, 2018.

The Third Member also noted that the acknowledgment specifically recorded receipt of the "original order" on January 2, 2018. In his view, that was sufficient to show that the order had been validly communicated to the appellant through its authorized representative. As the appeal was filed after the statutory period of 60 days as well as the additional condonable period of 30 days, it was barred by limitation.

With the Third Member concurring with the Technical Member, the majority upheld the order of the Commissioner (Appeals) and dismissed Simplilearn's appeal as time-barred. The Tribunal held that receipt of an adjudication order by an authorized representative sets the clock running for filing an appeal.

For Appellant: Abhi, Kruthika and Ramakrishna, Chartered Accountants

For Respondent: M.A. Jithendra, Asst. Commr. (AR)