2013 (1) TMI 461 - AT - Service Tax

Dispatch of Order under section 37C - Whether dispatch by speed post would suffice the purpose of dispatch by registered post with acknowledgment due - The order-in-original served on the assessee as early as in September, 2008 - Copy of the order-in-original was received by the assessee on 6/1/2010 - Appeal against that order was filed with the Commissioner (Appeals) on 5/2/2010 - Waiver of Pre-deposit Delay in filling of appeal Held that - This question was answered in the affirmative, but this can hardly come to support the department s case before us inasmuch as the question which we have already answered in favour of the appellant is whether speed post would serve the purpose of registered post with acknowledgment due. This question has no parallel with the question concerned in the income tax case. Remand this case to the Commissioner (Appeals) with a request to consider the assessee s appeal filed against the order-in-original to have been filed within time and then to proceed to dispose it of on merits in accordance with law and the principles of natural justice. Appeal allowed and remands back to decide the case on basis of merits. In favour of assessee

Summary

Issues:
1. Maintainability of appeal based on limitation period.
2. Validity of service of order-in-original.
3. Interpretation of relevant provisions of law regarding dispatch of orders.
4. Comparison between dispatch by speed post and registered post with acknowledgment due.

Issue 1: Maintainability of appeal based on limitation period
The appeal was filed against the appellate Commissioner's order dismissing the assessee's appeal as time-barred due to the limitation period under section 85(3) of the Finance Act 1994. The appellant received the order-in-original in 2010 but filed the appeal in 2010, which was considered time-barred by the appellate authority.

Issue 2: Validity of service of order-in-original
The appellant claimed they did not receive a copy of the order-in-original in 2008 and only obtained it in 2010. The appellant argued that the order should have been sent by registered post with acknowledgment due as per section 37C of the Central Excise Act, instead of speed post without an acknowledgment card. The appellant relied on a judgment stating that dispatch by speed post was not a valid service.

Issue 3: Interpretation of relevant provisions of law regarding dispatch of orders
The department argued that the dispatch by speed post was in compliance with the law and should be considered valid service. They cited a case where the High Court accepted speed post as sufficient for the purpose of dispatch. The department claimed that as the postal article did not return, it must have been received by the appellant.

Issue 4: Comparison between dispatch by speed post and registered post with acknowledgment due
The tribunal found that the dispatch of the order-in-original by speed post did not comply with the legal requirement of sending it by registered post with acknowledgment due under section 37C of the Central Excise Act. The tribunal rejected the department's argument that speed post was equivalent to registered post with acknowledgment due, emphasizing the importance of acknowledgment for ensuring delivery to the addressee.

In conclusion, the tribunal remanded the case to the Commissioner (Appeals) to consider the appeal as filed within the limitation period and proceed to dispose of it on merits. The tribunal allowed the appeal by way of remand, setting aside the previous order and disposing of the stay application.