2013 (9) TMI 863 - AT - Service Tax

Condonation of delay - Event Management Service - Commissioner rejected appeal for delay in filing appeal - Held that - The statutory provision clearly enjoins that an aggrieved person is entitled to present an appeal within three months from the date of receipt of the decision/ order of an adjudicating authority. The conclusion by the appellate Commissioner that the adjudication order was despatched on 05.05.2011 but the appeal was filed on 15.06.2012 and therefore beyond the period of limitation, therefore discloses non-application of mind. The Commissioner (Appeals) ought to have based his conclusion as to limitation on the basis of the date of receipt of the adjudication order and not the date of despatch of the order. In the absence of any analysis and conclusion by the learned appellate Commissioner, identifying the date on which the adjudication order was received by the assessee, he could not have legitimately concluded that the appeal preferred on 15.06.2012 is beyond the period of limitation, since it was filed after a period of one year one month and ten days, from the date of despatch. The process of reasoning adopted by the Commissioner for computing the period of delay from the date of despatch is perverse - appellate order quashed and remit the appeal to the Commissioner (Appeals) for denovo determination - Decided in favour of assessee.

Summary

Issues:
1. Delay in filing the appeal before the Commissioner (Appeals)
2. Consideration of limitation period for filing the appeal
3. Application of Section 85(3) of the Act
4. Interpretation of the date of receipt of the adjudication order
5. Legitimacy of delay in filing the appeal
6. Quashing of appellate order and remitting the appeal for denovo determination

Analysis:

1. The appeal was filed against the order of the Commissioner (Appeals) rejecting it due to a delay of 1 year, 1 month, and ten days. The Commissioner (Appeals) also upheld the adjudication order based on the delay in filing the appeal.

2. The adjudication order confirmed a service tax liability, interest, and penalty for providing Event Management Service. The appeal was filed after receiving a copy of the adjudication order along with a recovery notice.

3. Section 85(3) of the Act states that an appeal must be presented within three months from the date of receipt of the decision or order of the adjudicating authority.

4. The Commissioner (Appeals) considered the date of despatch of the adjudication order as the basis for calculating the limitation period, which was deemed incorrect. The date of receipt, not despatch, should determine the start of the limitation period.

5. The argument presented by the DR regarding the presumption of receipt of communication through post was not deemed sufficient to justify the delay in filing the appeal. The Commissioner's conclusion lacked proper reasoning and analysis.

6. Due to the error in determining the limitation period, the appellate order was quashed, and the appeal was remitted to the Commissioner (Appeals) for denovo determination. The rejection of the appeal based on limitation did not warrant upholding the adjudication order on merits.

This detailed analysis highlights the key issues surrounding the delay in filing the appeal, the interpretation of statutory provisions, and the correct application of the limitation period as per Section 85(3) of the Act.