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2014 (4) TMI 1069 - AT - Service TaxCondonation of delay - refusal to receive the order - non-service of order though the order was dispatched through Registered Post with Acknowledgment Due (RPAD) - postal authorities returned the envelope containing the order with a remark on the envelop refused - appellant has placed an affidavit on record that he had not refused to receive the envelop and he did not know why the postal authorities made such remark - Held that - It is quite clear that the service considered by the Revenue is the service as contemplated under Section 37C(1)(b) of CEA and therefore, it cannot be said that there was no proper service as contemplated under the law in this case. The learned counsel pleaded for a sympathetic and a lenient treatment in view of the situation of the appellant but unfortunately, we are bound by the law and legal provisions. Accordingly, the appeal itself has to be rejected at this stage itself and we do so. - Appeal rejected - Decided against the assessee.
Issues: Appeal dismissed due to delay in filing. Service of order under Section 37C of CEA disputed.
Analysis: 1. Delay in Filing Appeal: The appeal was dismissed by the Commissioner citing that it was filed beyond the condonable period. The impugned order was received by the appellant on 17-1-2013, whereas the appellant claimed to have received it on 15-12-2012. The order was dispatched by RPAD but returned as "refused" by postal authorities. The Department then served the order by pasting it at the appellant's address in the presence of witnesses, following the provisions of Section 37C of CEA and Section 83 of FA. The Commissioner held that the order was duly served on 13-2-2012, based on these statutory provisions. 2. Dispute Over Service of Order: The appellant argued that under Section 37 of CEA, service of the order is essential, and affixing the order on the appellant's residence door cannot be considered as valid service if there was no actual receipt. The appellant contended that as per Section 37C(1)(a), there was no valid service since the order was not tendered or sent by registered post with acknowledgment due. The appellant provided an affidavit stating non-receipt and challenged the validity of the service. 3. Legal Precedents and Applicability: The appellant's counsel cited various tribunal and court decisions to support the argument that lack of service under Section 37C(1)(a) implies no service at all. However, the Tribunal differentiated the present case from the cited precedents. It was noted that in this case, there was no effective service under Section 37C(1)(a), and the Department proceeded with affixing the order under Section 37C(1)(b). The Tribunal highlighted that the decisions referenced by the appellant did not align with the circumstances of this case, where the service was considered valid under Section 37C(1)(b). 4. Decision and Conclusion: The Tribunal emphasized that the service method followed by the Revenue complied with Section 37C(1)(b) of CEA, and despite the appellant's plea for leniency, the appeal had to be rejected based on legal provisions. The Tribunal concluded that the appeal could not be entertained due to the delay in filing and the deemed valid service of the order under Section 37C(1)(b). Thus, the appeal was dismissed based on the grounds of service and timeliness.
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