Custom, Excise & Service Tax Tribunal
Sunshine Velvet Pvt Ltd vs Cgst & Central Excise Vadodara Ii on 10 July, 2024
Customs, Excise & Service Tax Appellate Tribunal
West Zonal Bench at Ahmedabad
REGIONAL BENCH-COURT NO. 3
SERVICE TAX Appeal No. 10338 of 2024 - DB
[Misc. Application No. ST/EH/10773/2024]
(Arising out of Order in Appeal VAD-EXCUS-002-APP-478-2023-24 dated 21/03/2024
passed by Commissioner (Appeals), GST & Central Excise,- VADODARA)
SUNSHINE VELVET PVT LTD ........Appellant
Plot No. 127/2 B GIDC,
Estate Ankleshwar
Bharuch, Gujarat- 393002
VERSUS
Commissioner of Central Excise and
Service Tax - CGST & Central Excise Vadodara II ......Respondent
GST Bhavan, Arkee Garba Ground, Nr. Telephone Exchange, Subhanpura, Vadodara, Gujarat-390023 APPEARANCE:
Shri Jigar Shah & Amber Kumrawat, Advocate for the Appellant Shri Himanshu P Shrimali, Superintendent (AR) for the Respondent CORAM: HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR HON'BLE MEMBER (TECHNICAL), MR. C L MAHAR Final Order No. 11518/2024 DATE OF HEARING: 10.07.2024 DATE OF DECISION: 10.07.2024 RAMESH NAIR As regard the Early hearing application, we find that the Commissioner (Appeals) has rejected the appeal before him only on time bar and not on merit, therefore, keeping the appeal pending in the CESTAT is not justified in the interest of either party. Hence, the Early hearing application is allowed. Since the issue of time bar lies in narrow compass, on the consent of both the sides the appeal itself is taken for disposal.
2. By the impugned order learned Commissioner (Appeals) has dismissed the appeal for delay in filing the appeal. As per the learned Commissioner (Appeals), the appeal was filed after 90 days. Therefore, in absence of any power to condone the delay beyond 90 days, the appeal was dismissed.
3. Shri Jigar Shah, Learned Counsel with Shri Amber Kumrawat, Advocate appearing on behalf of the appellant, at the outset submits that though, the appeal was filed after 90 days from the date of receipt, the
2| ST/10338/2024 order was received by the security guard of the appellant company. The said security guard (being a contract staff) had subsequently resigned who was not authorized to receive any posted document on behalf of the appellant. He submits that as per Section 37C of the Central Excise Act, 1944 the order has to be served to the person for whom it is intended or his authorized agent if any. In the present case, the order was neither served to the appellant nor to his authorized agent. Therefore, the first service of the order is not as per law and the same cannot be treated as date of communication of the order. He submits that the appellant was not aware about the Order-In-Original only when they received a letter of recovery notice dated 16.10.2023 from department on 25.10.2023, they came to know about the Order-In-Original dated 27.02.2023 thereafter, they searched the order and it was found in the drawer of the security agency personal of the company Rajendra Singh Bisht who resigned from the service w.e.f. 31.03.2023. The appellant could search the order on 25.10.2023, therefore, that date has to be considered as date of communication and from that date the appeal was filed on 12.12.2023 i.e. within 60 days, therefore, there was no delay in filing the appeal before the learned commissioner (Appeals). He placed reliance on the following judgments:-
Shree Developers Vs CGST 2023 (9) TMI-300-CESTAT Ahmedabad Shridhar Construction v. CST 2023 (2) TMI 233-CESTATAhmedabad Saral Wire Craft Pvt. Ltd. v. CCE 2015 (7) TMI 894- SC R.B. Industries v. CCE, Delhi 2012 (2) TMI 470-CESTAT R.K. Agarwal v. CESTAT, New Delhi 2008 (221) ELT 486 (All.) Nandaram Huntaram v. CIT 1959 (1) TMI 33- Orissa High Court Lord Krishna Real Infra Pvt Ltd. Vs Commissioner Of Customs, C.E. & Noida 2019(2) TMI 1563 - CESTAT ALLAHABAD Rockman Industries Ltd Vs Commissioner of Central Taxes & Central Excise, Chennai Outer Commissionerate 2020 (5) TMI 150 -CESTAT CHENNAI National Plastic Technologies Ltd Vs The Commissioner of G.S.T. & Central Excise, Chennai Outer Commissionerate 2019 (4) TMI 899 - CESTAT CHENNAI
4. Shri Himanshu P Shrimali, Learned Superintendent (AR) appearing on behalf of the Revenue reiterates the findings of the impugned order.
3| ST/10338/2024
5. On the careful consideration of the submissions made by both the sides and perusal of the record, we at this stage can only decide the time aspect on the basis of which the appeal of the appellant was rejected by the commissioner (Appeals). Therefore, we are not going into the merit of the case. The statutory provision for service of the order is provided under Section 37 C of the Central Excise Act, 1944 which is reproduced 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 acknowledgment due 2[or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963)], 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.
(2) Every decision or order passed or any summons or notice 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 3[or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1).]"
From the above Clause (a) of Section 37 C, it is unambiguous that the order needs to be served to the person for whom it is intended that means to the appellant or to his authorized agent if any person is authorized. In the facts of the present case, the order was served to a contract security person Shri Rajendra Singh Bisht, admittedly he is not the authorized person of the appellant company. Therefore, the order was neither served to the appellant nor to any authorized person. In accordance with Section 37 C (a) the order was not served as per the statutory provision. Therefore, such service cannot be considered as service of the order. The appellant after knowing about the Order-In-Original through recovery notice of the department searched the order and could trace it on 25.10.2023. In our considered view, as per the trite law Under Section 37 C and the facts in the present case, we are of the view that 25.10.2023 is the date of communication to be considered and the appeal was filed on 12.12.2023 that is within the normal period of 60 days. It is the settled position by the Hon'ble Supreme Court in the case of Saral Wire Craft Private Limited (supra) that any order served to person who is not authorized, the said service cannot be considered as the
4| ST/10338/2024 service of the order. Therefore, we are of the view that in the peculiar facts of the present case which is not in dispute, the appeal before the Commissioner (Appeals) was filed well within 60 days. Hence, the order of Commissioner (Appeals) rejecting the appeal on the ground of time bar is not sustainable, hence, the same is set aside. Since the Commissioner (Appeals) has rejected the appeal on time bar, merits of the case was not considered by him. Therefore, the matter needs to be remanded to the Commissioner (Appeals) for deciding the matter on merit.
6. Accordingly, the impugned order is set aside. Appeal is allowed by way of remand to the Commissioner (Appeals). This order be given dasti.
(Operative part of the order pronounced in the open court) (RAMESH NAIR) MEMBER (JUDICIAL) (C L MAHAR) MEMBER (TECHNICAL) Bharvi