SERVING THE ORDER ON THE EMPLOYEE

[Mr. M. GOVINDARAJAN]

Section 35(1) of Central Excise Act requires an appeal to be filed within a period of sixty days from the date of communication of the order to the assessee.  The proviso to the said section provides that the Commissioner (Appeals) on sufficient cause having been shown, can allow the appeal within a further period of 30 days.

Section 37C of the Central Excise Act provides that any decision or order passed or any summon or notice issued under the Act or the Rules made there under shall be served by registered post with acknowledgement due for whom it is intended or his authorized agent, if any.  The issue to be discussed in this article is whether the serving the order of the Adjudicating Authority on the employee amounts to proper service under the provisions of Central Excise Act with reference to decided case law.

In ‘Raj Ratan Industry Limited V. Commissioner of Central Excise, Kanpur Nagar’ – 2014 (1) TMI 1215 - ALLAHABAD HIGH COURT the appellant filed an appeal before the Commissioner (Appeals) on 17.12.2009 against the order dated 31.12.2008 of the Joint Commissioner of Central Excise, Kanpur.   The said appeal was dismissed on the ground of belated submission of appeal.   The Commissioner (Appeals) has no power to condone the delay beyond 60 days from the date of communication of the order of the Adjudicating Authority.  On appeal to the Tribunal by the appellant the Tribunal confirmed the order of the Commissioner (Appeals).   Against this order the appellant approached the High Court.   In the appeal before the Division Bench the Court permitted the appellant to move an application for rectification before the Tribunal since the contention of the appellant was that the order of the Adjudicating Authority was served on an employee of the appellant Vijay Agarwal, who was not an authorized representative within the meaning of Section 37C(1)(a).

An application for rectification was filed. The said application was dismissed by the Tribunal which was challenged before the High Court.   The appellant submitted the following before the High Court-

• Vijay Agarwal, though an employee of the appellant, was not an authorized representative;
• An authorized representative means a person authorized by the assessee would mean a legal practitioner;

The High Court found that Vijay Agarwal was at the material time, an employee of the assessee and a copy of the order of Adjudicating Officer was personally served on him at the Range Office on 26.02.2009.   The assessee filed appeal before Commissioner (Appeals) in which he averred that the copy of the order was earlier was served to one of the employee of the company but the copy of the order was lost by him during the way to the factory.  The management of the company was not aware of the order.   When the Department informed about the receipt of the order by one of the employee, an inquiry was conducted and found that the order was lost by Shri Vijay Agarwal.   An FIR was lodged for this purpose.   The appellant removed the employee from the service.  The appellant requested for non receipt of the copy of the order.

Before the Tribunal the appellant contended that the order was served on Vijay Agarwal on 26.02.2009.  On that day the order was lost.  FIR was lodged on 21.10.2009 after which the appeal was filed on 17.12.2009.   If the date of receipt is deemed to be 21.10.2009 there would be no delay in filing the appeal.

The High Court found that FIR was lodged by Vijay Kumar Agarwal.  Initially before the Commissioner (Appeals) nor before the tribunal the appellant has not stressed that Vijay Agarwal was not an authorized representative.   This submission was raised when the order was passed on 12.12.2012 by the High Court for filing a rectification application.

The Revenue submitted the following before the High Court-

• An acknowledgement dated 26.02.2009 issued by Vijay Agarwal of the receipt of the order in original dated 31.12.008 in which he has signed as an authorized signatory of the appellant;
• A letter dated 28.08.2009 of the appellant in which Vijay Agarwal has again signed as an authorized signatory;
• Acknowledgement dated 23.10.2009 executed by a Director of the appellant which specifically refers to Vijay Kumar Agarwal as an authorized signatory.
• On 05.08.2013 Vijay Agarwal filed a refund application in Division II of the Central Excise, Kanpur, though subsequently it was withdrawn.

The High Court held that Vijay Kumar Agarwal was in fact an authorized signatory of the appellant.   It is the only legal practitioner who can be authorized representative is misconceived.   Section 35Q(1) provides that any person who is entitled or required to appear before a Central Excise Officer or an Appellate Tribunal in connection with any proceedings otherwise than when required to appear personally for examination on oath or affirmation, may appear through an authorized representative.  Sub section (2) defines the expression ‘authorized representative’ for the purpose of sub section (1) as inter alia being a regular employee.  In this case the service was effected on an authorized representative and the order of the Tribunal does not suffer from any error.

The High Court dismissed the appeal since no substantial question of law arised in this case.