2011 (10) TMI 243 - AT - Service Tax

Date of Service - Order passed on 28.09.2010 - Door locked - Affixture on 11.10.2010 - Intimation received 11.03.2010 - Held - Recordings do not disclose appellant has deliberately avoided the service of the order nor said para discloses malafide of the appellant in that regard. In absence of these two intentions the appellant deserves to be heard by the appellate authority again as to whether discretion under section 85 (3) of the Finance Act 1994 is exercisable by him. Appeal remanded back.

Summary

Issues:
1. Service of adjudication order not received by the appellant within the stipulated time frame.
2. Discretion of the appellate authority under section 85(3) of the Finance Act 1994.
3. Appellant's right to be heard and considered by the appellate authority.

Analysis:
1. The appellant argued that the adjudication order was not served on them before the specified date, despite being passed earlier and sent via registered post. The order was affixed on the appellant's door due to non-delivery, and the appellant only became aware of it later. The appellate authority has the discretion, as per section 85(3) of the Finance Act 1994, to consider preventable reasons for delay in filing an appeal. The appellant's appeal was filed within a reasonable time after becoming aware of the order, and there is no bar on the appellate authority to entertain the appeal beyond the due date. Thus, the matter was directed to be reconsidered by the appellate authority.

2. The Departmental Representative contended that the appellant had lost the remedy by not seeking it in time. However, the Tribunal found no evidence of deliberate avoidance or malafide intentions on the part of the appellant. Without such intentions, the appellant should be given the opportunity to be heard again by the appellate authority regarding the exercise of discretion under section 85(3) of the Finance Act 1994. Citing the precedent set by the Apex Court, the matter was sent back to the appellate authority for a fresh consideration. The appellant was instructed to provide reasons for the non-service of the order and make submissions for the authority's review within a specified timeframe to ensure a fair hearing.

3. As a result of the above observations, the stay application was deemed infructuous, and the appeal was remanded with the given directions. Both the stay application and the appeal were disposed of accordingly. The appellant was advised to apply promptly for a hearing date, and the appellate authority was tasked with deciding on the exercise of discretion under the relevant provisions of the law, ensuring a fair process for the appellant.