2023 (9) TMI 300 - CESTAT AHMEDABAD

Condonation of delay in filing appeal - proper service of order in terms of Section 37C of Central Excise Act, 1944 or not - HELD THAT:- From the plain reading of the authorization given to M/s. Kamleshkumar& Associates, Chartered Accountant, it is found that authority is given for specific acts as prescribed under serial No. 1 to 3.

On going through applicable acts, it is found that there is no specific act of receiving the adjudication order in the authorization. The learned Commissioner (Appeals) construed that the authorised representative who received the order is authorised agent in terms of clause 3 of the authorization letter. From the reading of the said clause 3, it is found that the clause 3 is related to the acts prescribed in serial No. 1 and 2 and according to which the authority is not given to the authorised representative for receiving the order. Moreover, as per Section 37C, the order can be served only either to the person for whom it is intended or his authorised agent.

The authorised legal representative cannot be equated with an authorised agent of the assessee. For this reason also service of the order to authorised representative i.e. Chartered Accountant dealing with the matter before the Adjudicating Authority is not legal and proper.

The subsequent service of the order copy to the appellant on 22.07.2022 is the date of communication of the order-in-original to the appellant. Accordingly, the appeal filed on 19.09.2022 is well within the prescribed time limit of two months (60days), therefore, there is no delay in filing the appeal - the appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merits of the case.