2011 (4) TMI 819 - AT - Service Tax

Waiver of pre-deposit - Appeal had been filed belatedly and not in terms of Section 85(3) of the Finance Act, 1994 - Held that - If the appellants had received the order on 28.05.2010 and if the appeal is filed on 05.07.2010, the appeal is in time, as indicated in the letter dated 17.06.2010 arising from the Office of the Commissioner of Service Tax - The factual matrix needs to be verified at the lower end - Hence, set aside the impugned order restoring the appeal to its original number in the records of the Commissioner (Appeals) and direct him to verify the claim of the assessee as regards the actual date of receipt of the OIO - Appeal allowed by way of remand.

Summary

Issues:
1. Stay petition for waiver of pre-deposit of confirmed amounts.
2. Timeliness of appeal filing under Section 85(3) of the Finance Act, 1994.
3. Discrepancy in dates of receipt of Order-In-Original (OIO).
4. Verification of factual matrix and remand for further proceedings.

Analysis:

1. The appellant filed a stay petition seeking waiver of pre-deposit of confirmed amounts, which were upheld by the learned Commissioner (Appeals). The appeal was dismissed due to alleged belated filing not in accordance with Section 85(3) of the Finance Act, 1994.

2. The Tribunal, after hearing both sides, determined that the appeal could be disposed of promptly as the issue was narrow. Upon allowing the waiver application, the Tribunal proceeded to take up the appeal for disposal.

3. The appellant's counsel highlighted a factual discrepancy regarding the date of receipt of the OIO. While the Commissioner (Appeals) stated the receipt date as 01.04.2010, evidence presented by the appellant indicated the actual receipt on 28.05.2010. The Departmental Representative raised the issue of verification, pointing out that the appellant declared the receipt date as 01.04.2010 in the ST-4 form.

4. After considering the submissions, the Tribunal concluded that if the appellant received the order on 28.05.2010 and filed the appeal on 05.07.2010, the appeal was timely. The Tribunal set aside the impugned order and directed the Commissioner (Appeals) to verify the actual date of receipt of the OIO. The Commissioner was instructed to proceed on merits if the claim was verified, ensuring adherence to the Principles of Natural Justice. The appeal was allowed by way of remand for further proceedings.

This detailed analysis of the judgment addresses the issues raised in the case comprehensively, covering the stay petition, timeliness of appeal filing, discrepancy in dates, and the subsequent remand for verification and further proceedings.