Thursday, 23 July 2015

Adjudication Order served on 'kitchen boy' of assessee, is not proper service - SC

IN this case, the assessee lost at every stage - the Assistant Commissioner, the Commissioner (Appeals), the CESTAT and the High Court, but finally succeeded in the Supreme Court.
The Department served the Adjudication Order dated 30.3.2012 on the ‘Kitchen boy' of the assessee on 3.4.2012. The assessee came to know about this order only on 26.7.2012, when the Department came calling to recover the ‘arrears'. He filed an appeal with the Commissioner (Appeals) on 22.8.2012, but the Commissioner (Appeals) dismissed the appeal as time barred, as according to him the order was served on 3.4.2012.
The CESTAT accepted the Department's version that the Adjudication Order had been duly served/delivered on the Appellant on 3.4.2012; since the Appeal came to be filed on 22.8.2012, the dismissal on the ground of limitation was held to be in consonance with the Act.
The High Court held that there was no power to condone the delay beyond the statutory period.
And the poor assessee approached the Supreme Court.
The Supreme Court on Monday allowed the appeal, noting at the outset that the Appeal filed by the Appellant has not been considered on merits at all. The Appellate Authorities as well as the High Court failed to keep in perspective the essential issue - namely - to ascertain the date from which limitation was to be calculated.
Section 37C of the Central Excise Act stipulates:
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 acknowledgment due, to the person for whom it is intended or his authorized 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.
The Supreme Court noted that Sub-section (a) of Section 37C (supra) states that any decision, order, summons or notice may either be sent by registered post with acknowledgement due to the person for whom it is intended or his authorized agent. If this mode of service is unsuccessful then service can be effect by affixation.
The Supreme Court made certain vital observations, which every officer of the Department should always keep in mind.
It is an anathema in law to decide a matter without due notice to the concerned party.
Every effort must be taken to meaningfully and realistically serve the affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action.
The Inspector of the Department should have meticulously followed and obeyed the mandate of the statute and tendered the Adjudication Order either on the party on whom it was intended or on its authorized agent and on one else.
It is in these circumstances that we are of the clear conclusion that a miscarriage of justice has taken place, in that the Authorities/Courts below have failed to notice the specific language of Section 37C(a) of the Act which requires that an Order must be tendered on the concerned person or his authorized agent, in other words, on no other person, to ensure efficaciousness.
It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all.
The Inspector who ostensibly served the copy of the Order should have known the requirements of the statute and therefore should have insisted on an acknowledgement either by the Appellant or by its authorized agent.
The Inspector had a statutory function to fulfil, not a mere perfunctory one.
The Supreme Court directed the Commissioner (Appeals) to hear the case on 3.8.2015.
We bring you this Order today

No comments: