2013 (6) TMI 341 - AT - Service Tax

Appeal dismissed as time bared - Held that - When the case came up for hearing last time, the department was directed to produce evidence towards service of the order dated 29/03/2010 to the appellant. Now, the Commissionerate has reported that they had sent the order by speed post however, the postal authorities has informed that the record of the speed post article is not available since the preservation period of old records are over. Thus benefit of doubt is to be given to the appellant and hold that service of the order was not completed earlier and the same was completed only on 11/02/2011 when the order was handed over to the appellant in person. Thus as the appeal has been filed within three months from the date of receipt of the order dismissal of appeal on account of time-bar is not sustainable in law - appeal is allowed by way of remand.

Summary

Issues: Appeal against dismissal of appeal on account of time-bar.

Analysis:
The appeal was filed against Order-in-Appeal no. AGS(83)67/2011 dated 20/04/2011 passed by the Commissioner of Central Excise & Customs (Appeals), Aurangabad. The appellant, M/s Pagaria Auto Pvt. Ltd., had their appeal dismissed due to being time-barred. The appellant contended that although the order appealed against was dated 29/03/2010, they only received it in person on 11/02/2011. Subsequently, on 19/04/2011, they filed the appeal before the lower appellate authority within three months from the date of receipt of the order. The appellant argued that the appeal was filed in time, and the decision to dismiss it on account of time-bar was legally unsustainable.

During the hearing, the department was directed to provide evidence of the service of the order dated 29/03/2010 to the appellant. The Commissionerate reported that they had sent the order via speed post, but the postal authorities stated that the record of the speed post article was unavailable due to the expiration of the preservation period for old records. Given this situation, the Tribunal decided to give the benefit of doubt to the appellant. The Tribunal held that the service of the order was not completed earlier and was only completed on 11/02/2011 when the order was handed over to the appellant in person.

Based on the above findings, the Tribunal concluded that since the appeal was filed within three months from the date of receipt of the order, the dismissal of the appeal on the grounds of being time-barred was not legally sustainable. Consequently, the Tribunal remanded the matter to the lower appellate authority to decide the case on its merits and issue an order in accordance with the law. The appeal was allowed by way of remand, and the stay application was also disposed of as a part of the judgment.