Service of Order - practice to be followed

PJ/Case Laws/2011-12/1488

Case: QUALITY CONSTRUCTION versus COMMISSIONER OF SERVICE TAX

Citation: 2011 (24) S.T.R 713 (Tri- Bang.)

Issue:- Deviation from normal practice of service of order on counsel of party – Order not received on time – appeal filed belatedly - Whether non-intimation of change of address by party to the Commissioner (Appeals) would effect the prejudice caused to party by deviation by Commissioner (Appeals).

Brief Facts:- The brief fact of the case is that the Appellant seeks condonation of the delay of 260 days involved in the filing of the appeal. The impugned order was passed on 18-12-2009. A letter dated 23-8-2010 of the Superintendent of Central Excise (Appeals) in the office of the Commissioner of Central Excise (Appeals), addressed to the counsel for the Appellant, indicates that the order was sent by Registered Post (Acknowledgement Due) bearing No. 3245 dated 24-12-2009 to the party at the address furnished by them and that postal article was returned undelivered on 8-1-2010. The postman's remark ("No such person in this address") noted in this letter indicates that the Appellant was not it putting available at the address given in their memorandum of appeal filed with the Commissioner (Appeals). This letter dated 23-8-2010 further indicates other copy of the Order-in-Appeal was delivered to the appellant's counsel which was received by the counsel on 25-8-2010. The appeal was filed with Tribunal on 9-9-2010 with a delay of 260 days reckoned with reference to the date of dispatch (24-12-2009) of the original copy of the impugned order.

Appellant’s Contention:- The Appellant has made two fold submissions: - Firstly, it is submitted that no copy of the impugned order was supplied to the appellant's counsel by the Commissioner (Appeals), which is said to be a deviation from the normal practice Secondly, it is submitted that the modes of service of order were not sequentially resorted to by the appellate authority in this case under Section 37C of the Central Excise Act as applicable to service tax cases. A copy of the order was sent by Registered Post (AD) as per the first mode but the dispatch returned undelivered. The appellate authority should have, then, taken steps to ensure that a copy of the order was affixed on a conspicuous part of the premises of the appellant, failing which, as per the third mode of service, a copy of the order should have been affixed on the notice board of the appellate authority itself. The counsel submits that no such steps were taken in this regard. He prays for condonation of the delay of the appeal, relying on the Tribunal's Larger Bench decision in the case of Margra Industries Ltd. v. CC, New Delhi [2008 (10) S.T.R. 81 (Tn. - LB) = 2006 (202) E.L.T. 244 (Tribunal-LB)].

Respondent’s Contention:- The Respondents submits that it was obligatory for the Appellant to declare their change of address to the Commissioner (Appeals). As the unit was closed during the pendency of the appeal with the Commissioner (Appeals)& the change of address was not intimated by the party. In the circumstances, according to the ld. Jt. CDR, the present application for condonation of delay of the appeal is only liable to be dismissed. In this connection, reliance is placed on Sunbeam Garments Pvt. Ltd. v. CC [2010 (255) E.L.T. 383 (Guj.) = 2010 (20) S.T.R. 568 (Cup]. In answer to a query from the Bench, the ld. Jt. CDR concedes that, in this case, no copy of the appellate Commissioner's order was affixed either at the premises of the appellant or on the notice board of the appellate authority.

Reasoning of Judgment:- The Tribunal is of the view that there is sufficient cause for condonation of delay of the appeal in this case. It appears from the impugned order that no copy of the order was sent or otherwise delivered to the advocate. Service of a copy of the order on the counsel for the party is a mandatory requirement of the rule of natural justice, which is ordinarily followed in the Department. In this, case, nevertheless, the lower appellate authority deviated from the practice. This deviation appears to have caused prejudice to the party. Had a copy of the order been served on the appellant's counsel, an appeal against that order could have been filed within the prescribed period of limitation. That the party did not intimate change of address to the Commissioner (Appeals) would not detract from the factual position that prejudice was caused to the party by the appellate Commissioner's deviation from normal practice of service of order on counsel for the party. It is also not in dispute that the procedure laid down under Section 37C of the Central Excise Act was not exhausted by the appellate authority in this case & also the decisions cited before us do not seem to be decisive in the peculiar facts of this case. For the aforesaid reasons, we condone the delay of the appeal.

Decision:- Application allowed.

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PJ/Case Laws/2011-12/1488

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