M/S Al Jamshed Tour And Travels vs. The Commissioner Of Customs

Held

The Court held that the impugned orders passed by the Commissioner (Appeals) and the Tribunal were unsustainable and quashed them. The primary issue revolved around the proper service of the order dated January 31, 2018. The Court found that while the respondent claimed service on Manoj Kumar Shrivastava as the petitioner's legal representative, there was no document on record authorizing him as an agent of the petitioner as required by Section 37C(1)(a) of the Central Excise Act, 1944. Merely mentioning his email address during registration was insufficient to establish him as an authorized agent. Consequently, the Court concluded that there was no proper service of the impugned order upon the petitioner. Citing the Supreme Court's decisions, the Court emphasized that rules of limitation are not meant to destroy rights and that courts should consider the explanation for delay bonafidely. The matter was remitted back to the Commissioner (Appeals) to decide the appeals on merits after affording the petitioners an opportunity of hearing. The Court explicitly stated it had not expressed any opinion on the merits of the case.

Facts

The petitioners, M/s Al Sadik Haj Tour Organizers and M/s Al Jamshed Tour & Travels, challenged orders passed by the Commissioner (Appeals) and the Customs, Excise & Service Tax Appellate Tribunal. The Original Authority/Assessing Authority issued a demand recovery order dated January 31, 2018. The petitioner claimed this order was not served upon them, and they only obtained it later. They filed an appeal before the Commissioner (Appeals) on July 30, 2018, under Section 85 of the Finance Act, 1994. This appeal was dismissed as barred by limitation, with the Commissioner observing a delay of one month and 20 days which could not be condoned. A subsequent appeal to the Tribunal was also dismissed on March 12, 2021. The petitioners contended that the original order was not served on them, and therefore, their appeal was filed within the prescribed time. The respondent argued that the order was served on Manoj Kumar Shrivastava, who was the petitioner's legal representative, on April 11, 2018.

Key Issues

1. Whether the appeal filed before the Commissioner (Appeals) was barred by limitation, considering the date of service of the order dated January 31, 2018. (Question of mixed law and fact, turning on Section 85 of the Finance Act, 1994 and Section 37C of the Central Excise Act, 1944). Petitioner's contention: The order dated January 31, 2018, was not served on the petitioner. The appeal was filed on July 30, 2018, and ought to have been considered on merits. The petitioner obtained the order somehow and filed the appeal, asserting it was well within the prescribed time due to non-service. Respondent's contention: The order was served on Manoj Kumar Shrivastava, the petitioner's legal representative, on April 11, 2018, as evidenced by Annexure-R/1. Therefore, the limitation period expired on June 11, 2018, and the extended period on July 11, 2018. There is no provision for condonation of delay under Section 85 of the Act, and the appeals were rightly dismissed. The respondent relied on Section 37C(1)(a) of the Central Excise Act, 1944, made applicable by Section 83 of the Finance Act, 1994, to argue that service on an authorized agent is valid.