Q : Whether daily wage earner can be an authorised agent of assessee ? Whether the service of order to the daily wage earner is valid ?
Daily wager Kitchen boy cannot be said to be an authorised agent of assessee; hence, service of adjudication order on him is not a valid service as per section 37C of Central Excise Act, 1944
SUPREME COURT OF INDIA
Saral Wire Craft (P.) Ltd.
Commissioner of Customs, Central Excise & Service Tax
CIVIL APPEAL NOS. 5631-5632 OF 2015
JULY 20, 2015
■ Hearing in show-cause notice was completed on 28-7-2011 and adjudication order was passed on 30-3-2012.
■ Adjudication order dated 30-3-2012 was served on assessee’s kitchen boy on 3-4-2012, who had unauthorisedly affixed assessee’s stamp on acknowledgement.
■ Assessee claimed that it came to know of adjudication order on 26-7-2012 when recovery proceedings were initiated and appeal before Commissioner (Appeals) was filed on 22-8-2012.
■ Commissioner (Appeals) dismissed appeal as time-barred counting from 3-4-2012, being beyond his power of condonation.
■ Sub-section (a) of section 37C 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. It is not the case of the Department that it simultaneously also dispatched the order to the assessee by registered post with acknowledgement due. [Para 8]
■ 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 assessee justifiably submits that it was statutorily impermissible for the Department to serve the Adjudication Order on a kitchen boy, who is not even a middle level officer and certainly not an authorized agent of the assessee. The version of the assessee that it learnt of the passing of the Adjudication Order dated 30-3-2012 only when, in the course of the recovery proceedings, the Department’s officials had visited its unit, is certainly believable.
■ The fact that, firstly, the order had not been passed in the presence of the assessee, so as to render its subsequent service a formality, and secondly, that the order came to be passed after an inordinate period of eight months should not have been ignored. This fact should not have been lost sight of by the Authorities below as it has inevitably led to a miscarriage of justice. 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 not the Department’ case that ‘kitchen boy’ was the authorized agent. Despite several opportunities given, the Department have failed to file their response to the Special Leave Petitions so as to controvert the asseveration of the assessee that the person on whom the decision was tendered was a mere daily wager ‘kitchen boy’ and that the assessee had no knowledge of the passing of the Adjudication Order. [Para 9]
■ It is in these circumstances 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) 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 assessee or by its authorized agent. The Inspector had a statutory function to fulfil, not a mere perfunctory one.
■ In the facts, the computation of the period would commence at least from the date on which the assessee asserts knowledge of its existence, i.e. on 26-7-2012. So computed, the Appeal filed before the Commissioner (Appeals) on 22-8-2012 would be within the prescribed period of 60 days and should, therefore, have been entertained on merits. It is ordered accordingly. [Para 10]