2014 (1) TMI 460 - HC - Service Tax

Condonation of delay - Non delivery or order - Construction of complex services - Registration not obtained with the Department of Service Tax - Held that - order dated 2-1-2008 was dispatched by registered post and the same was delivered to the petitioner-company on 3-1-2008. The delivery of the said order has not only been presumed but it has also been proved from the certificate of the Postal Department duly indicating that the said order was delivered to the assessee. It has been found as a fact that the address on which the said order was sent is admittedly correct and, therefore, the Appellate Authorities were fully justified that in view of Section 37C of the Act it is to be presumed that the said order was duly delivered to the petitioner-company. The presumption under Section 37C of the Act is rebuttable, but to rebut the same, the petitioner-company did not lead any cogent evidence. Merely an affidavit of the Director of the petitioner-company had been filed again stating that they had not received the order dated 2-1-2008 any time before 14-8-2008. Thus, it cannot be taken as an evidence to rebut the evidence led by the Revenue department which clearly established that the registered letter through which the order dated 2-1-2008 was sent was duly delivered to the petitioner-company on 3-1-2008 - No illegality in the order passed by the 1st Appellate Authority declining to condone the delay and to hear the case on merits - Decided against assessee.

Summary

Issues:
1. Quashing of the order passed by the Customs, Excise & Service Tax Appellate Tribunal.
2. Allegations of non-payment of Service Tax by the petitioner-company.
3. Imposition of tax and penalty by the Joint Commissioner.
4. Dismissal of appeal by the Appellate Authority on grounds of limitation.
5. Remand of the matter by the Tribunal to the 1st Appellate Authority.
6. Confirmation of the Appellate Authority's order by the Appellate Tribunal.
7. Review of the orders by the High Court.

Analysis:
1. The petitioner-company engaged in the construction of residential complexes was alleged to have provided taxable services without proper registration and payment of Service Tax. The Joint Commissioner imposed a tax of Rs. 19,10,774 along with a penalty for non-compliance. The petitioner failed to file an appeal within the statutory period, resulting in the dismissal of the appeal by the Appellate Authority.

2. The Tribunal remanded the matter back to the 1st Appellate Authority for review based on evidence presented. The Commissioner of Appeals upheld the order of the Joint Commissioner, emphasizing the deemed service of the order dated 2-1-2008 as per Section 37C of the Act. The Tribunal confirmed the decision of the Appellate Authority, leading to the filing of the present petition.

3. The High Court, after reviewing the orders and evidence, found no grounds to interfere with the findings of fact. The Court upheld the presumption of delivery based on documentary evidence and the correct address of the petitioner-company. The petitioner's failure to rebut the evidence led by the Revenue department resulted in the dismissal of the appeal.

4. The contention of condoning the delay in filing the appeal was rejected by the High Court. The Court cited statutory provisions and a Supreme Court decision to emphasize the limitations on condonation of delays beyond the prescribed period. The High Court concluded that the Appellate Authority's decision to decline condonation of delay was lawful and upheld by the Appellate Tribunal.

5. In conclusion, the High Court dismissed the petition, finding no merit in challenging the decisions of the lower authorities. The Court affirmed the orders of the Appellate Authority and the Tribunal, emphasizing the importance of adherence to statutory timelines and the burden of proof in rebutting deemed service of official communications.