) Mejda International vs Commissioner Of Customs

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No. C/COD/42395/2014, C/MISC/42396/2014 C/S/42394/2014 & C/42178/2014

C/COD/42397/2014, C/MISC/42399/2014, C/S/42398/2014 & C/42179/2014

C/COD/42400/2014, C/MISC/42402/2014 C/S/42401/2014 & C/42180/2014

[Arising out of Order-in-Appeal No.C.Cus.911 to 913/2013 dt. 28.6.2013 passed by the Commissioner of Customs (Appeals), Chennai]

1) Mejda International 2) Ram Gopal Prasad 3) T. Appi Reddy Appellant

Versus

Commissioner of Customs, Chennai Respondent

Appearance:

None For the Appellant

Shri R.Subramaniyan, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing / Decision : 7.9.2015

FINAL ORDER No.41156-41158/2015

Per R. Periasami

All the three COD applications are filed with a delay of 152 days in filing the respective appeals arising out of a common OIA No.911 to 913/2013 dt. 28.6.2013. There are other miscellaneous petitions listed for hearing today.

2. When the COD applications were listed on 9.3.2015, none appeared on behalf of appellant. Thereafter, the matter has been rolling on the Board on several days and finally when the matter was listed on 9.3.2015, a notice was issued for 13.4.2015. On 13.4.2015, the counsel appeared for the COD application. Revenue was directed to obtain a report on the date of service of the impugned order on the appellant with evidence. Accordingly, it was listed on 25.6.2015 and the matter is arising today.

3. Today also none appeared on behalf of appellant and the A.R for Revenue submits a copy of letter dt. 7.8.2015 signed by the Administrative Officer (Appeals) of O/o Commissioner of Customs (Appeals), Chennai. He submits that the impugned order has been despatched from Appeal unit, Customs House on 10.7.2013 and enclosed proof of despatch from the extract of Transit Book and also proof of postal authorities. Ld. AR relied the Hon'ble High Court's decision in the case of Nanumal Glass Works Vs CCE Kanpur - 2012 (284) ELT 15 (All.) and Final Order No.40568-40569/2014 dt. 27.6.2014.

4. After hearing Ld. A.R and on perusal of extract of date of despatch and postal receipts, we find that postal authorities have despatched the said OIO on 10.7.2013 and the date of service of impugned order is established. The appellant stated in their COD applications that they received the order only on 19.12.2013 and the same is not supported with any evidence. In the absence of any contrary evidence by appellant, there is no justification for condoning the delay of 152 days. We find that on an identical issue of service of order, the Hon'ble Allahabad High Court in the case of Nanumal Glass Works Vs CCE Kanpur (supra) has rejected the plea that unless order is received by assessee in person, it cannot be treated to be communicated to him. The relevant paragraphs are reproduced below :-

"8. We have? considered the submissions of learned counsel for the parties and perused the record.

9. A perusal of? the order of the Tribunal dated 22nd July, 2010, specially paragraph 9 of sub-clause (b) indicates that an option was given to the respondent (appellant in this appeal) to pay Rs. 25% of the penalty imposed amounting to Rs. 51205/- within 30 days from today. The Tribunal having specifically directed for payment of the amount from the date of passing of the order, the appellant could have taken benefit of the said order within 30 days from 22nd July, 2010. Admittedly, the appellant claimed deposit of 25% of the amount on 30th August, 2010 i.e. beyond 30 days.

10. Now comes the? submission of the appellants counsel that 30 days time shall be deemed to take place from the date of communication of the order. There are two reasons for not accepting the aforesaid submission. Firstly when the order of the Tribunal specifically directed for deposit within 30 days from (today) the date of order, the said period of 30 days shall begin from the date of the order and the express order of the Tribunal cannot be read in the manner the appellants counsel contends. Secondly, the counsel for the appellant being present on the date of hearing when the order was passed, which is recorded in the impugned order itself by the Tribunal, the order shall be deemed to be communicated to the appellant on the same very date.

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.

16. In view of the? foregoing discussions, we do not find any substantial question of law for consideration. The Tribunal has rightly rejected the miscellaneous application of the appellant by the impugned order.

17. The appeal is? dismissed."

The ratio of the Hon'ble High Court is squarely applicable to this case and the delay of 152 days not justified and cannot be condoned. Accordingly, the COD applications are dismissed. As a consequence, all the three appeals are dismissed along with attendant applications as time-barred.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER

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