Service of an order on an authorized representative who appeared during adjudication proceedings is valid under Section 37C of the Central Excise Act, and the appellate authority has no jurisdiction to condone any delay beyond the statutory period prescribed in the statute.

PER : P.A. AUGUSTIAN

The issue in the present appeal is whether the Appellant had filed appeal before the Lower authority within the statutory period or not.

2. Appellant is providing various service. Since they are not in a position to utilize the CENVAT credit availed in the production of taxable services exported during the period from October, 2015 to December, 2016, refund application was filed under Rule 5 of the CENVAT Credit Rules, 2005 r/w Notification No. 27/2012-CE (NT) dated 18.06.2012. However Adjudication authority rejected the refund claim on the ground that the refund claim was filed only on 31.03.2017 for the services expired during the quarter of October, 2015 to December, 2015 and it is barred by limitation. Aggrieved by said order, an appeal was filed before the Commissioner (Appeals). The Commissioner (Appeals) dismissed the appeal with an observation that the appeal is filed after delay of 77 days from the due date for filing the appeal. Aggrieved by the said order, present appeal is filed.

3. When the appeal came up for hearing, the Learned Chartered Accountant for the Appellant draw our attention to Section 37C of Central Excise Act which is reproduced below:-

“a) Any decision or order passed, or any summons or notices issued under this Act or the rules made thereunder, shall be served.

(i) 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 approved by the Central Board of 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;

(ii) 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;

(iii) 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.

b) Every decision or order passed or any summons or notice 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 courier referred to in sub-section (1) or a copy thereof is affixed in the manner provided in sub Section(1)”.

4. The Learned Chartered Accountant further submits that since the impugned order was not served through registered post, the date of service of the notice cannot considered from the date of receipt of the same by their representative. The Learned Chartered Accountant further submits that due date for filing the appeal has to be calculated from the date of service of the Order-in-Original to the Appellant and not to be calculated from the date of issuance of Order-in-Original.

5. The Learned AR strongly objected the appeal and also produced the letter dated 16.10.2024 along with the records of personal hearing conducted on 26.12.2017 and copy of the Order-in-Original with an endorsement that the Authorized Representative of the Appellant Shri. K Shivaprasad received the order on 02.01.2018.

6. Heard both sides. As per the impugned order, Appellate authority dismissed the appeal on the ground that the appeal is beyond the period of 77 days from the due date of filing the appeal with following finding:-

“3. The personal heari