TaxTMI 
TaxTMI 
2022 (3) TMI 321
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....er by the order of Original Authority/Assessing Authority, dated 31-01-2018 contained in Annexure-P/3. The petitioner submits that the said order was not communicated to him, even he applied for the same under the Right to Information Act. However, according to the petitioner, somehow he obtained the order and as such, filed an appeal on 30-7-2018 before the Commissioner (Appeals). CGST, Customs & Central Excise, Bhopal under Section 85 of the Finance Act, 1994 (for short, "Act 1994"). The said appeal was dismissed on the ground that the same was barred by limitation and accordingly the Commissioner (Appeals) CGST, Customs & Central Excise, Bhopal, vide impugned order dated 31-08-2018 observed that an appeal is required to be presented to the Commissioner of Central Excise (Appeals) under Section 85 of the Act 1994, within a period of two months and, the same can be allowed to be presented within a further period of one month. The Commissioner of Central Excise (Appeals) further observed that the delay in filing the appeal is one month and 20 days and the same cannot be condoned. Thus, he dismissed the appeal being barred by limitation, vide order dated 31-8-2018. 4. The petitio....
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....e Act 1994, and the appeals preferred by the petitioner were rightly dismissed by the Commissioner of Central Excise (Appeals) and also by the appellate Tribunal. 8. To buttress his submissions, the learned counsel for the respondent relied upon Section 37C of the Central Excise Act, 1944 (for short "the Act of 1944"). It is apt to refer Section 37C(1)(a) of the Act, which reads thus : "37C. Service of decisions, orders, summons etc. (1) Any decision or order passed or any summons or notice 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 [or by speed post with proof of delivery or by courier or by courier approved by the Central Board or 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 authorized agent, if any." 9. Learned counsel for the respondent further submitts that by virtue of Section 83 of the Act 1994, few provisions of the Act of 1944 are made applicable, including Section 37C(1)(a), which stipulates that tendering of the decis....
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....the service tax, interest or penalty : Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)." 12. From a bare perusal of Sub-section (3A) of Section 85 of the Act 1994, it is luminescent, that an appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 relating to service tax, interest or penalty under this Chapter. The proviso attached to sub-section (3A) provides, that if the Commissioner of Central Excise (Appeals) is satisfied that the appeal was presented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within....
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.... 2018 was ever served upon the petitioner. On the contrary, on the strength of the endorsement made at the bottom of the order dated 31-01-2018, it is stated that the same was received by Manoj Kumar Shrivastava on 11-4-2018, who was the legal representative of the petitioner. 17. In order to substantiate his contention learned counsel for the respondent has made reference to the e-mail description of Manoj Kumar Shrivastava mentioned in Annexure-R/2, which is a form which was required to be submitted for registration under Section 16A of the Act 1994. According to the respondent, the same was submitted by the petitioner and the e-mail description reveals that, it was in the name of Manoj Kumar Shrivastava. However, this contention of the respondent is of no significance, inasmuch as there has to be a document authorizing Manoj Kumar Shrivastava to be an authorized agent of the petitioner, as per he language employed under Section 37C(1)(a) of the Act of 1944. There is no document on record, or no material has been provided by the respondent to indicate that Manoj Kumar Shrivastava was ever authorized by the petitioner by some authority letter, to be the agent of the petitioner.....
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....forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant, the court shall compensate the opposite party for his loss. " 20. Thus analyzed, we are of the view, that the impugned orders dated 31-8-2018 and 12-03-2021 contained in Annexure-P/1 and Annexure-P/2 respectively, are unsustainable and accordingly, the same are quashed. The matter is remitted back to the Commissioner (Appeals) CGST, Customs & Central Excise, Bhopal to decide the appeals on merits in accordance with law, by affording proper opportunity of hearing to the petitioners. It is hereby made clear that this Court has not expressed any opinion on the merits of the case. 21. Consequently, the writ pe....