2013 (11) TMI 705 - AT - Service Tax

Condonation of delay - Delay in receipt of order - Held that - Appellant contends that no acknowledgement has been produced by the Revenue to the effect that appellant or his authorized representative have received the said order. Appellant is not going to gain in any manner by filing the appeal late if he has received OIA. Under the facts and circumstances of this appeal it has to be held that appellant first came to know about the OIA only on 11-1-2012 when the jurisdictional Range Superintendent contacted the applicant and the appeal in this case has been filed on 21-2-2012 and has to be considered as filed in time - Delay condoned.

Summary

Issues:
1. Delay in filing COD application based on receipt of order-in-Appeal.
2. Proof of delivery of order-in-Appeal to the appellant.
3. Applicability of legal precedents regarding service of orders.

Analysis:
1. Delay in filing COD application based on receipt of order-in-Appeal:
The Appellant filed a COD application citing the delay in receiving the order-in-Appeal, which they claimed to have received on 11-1-2012, despite the order being dated 22/24-2-2011. The Appellant contended that they were advised by their Consultant/Advocate to file the appeal within 3 months of receiving the order. The COD application was heard, and the Appellant's argument was considered.

2. Proof of delivery of order-in-Appeal to the appellant:
The Appellant argued that there was no evidence with the department to prove that the order-in-Appeal was received by them or their authorized representative. The department, represented by the ld. AR, presented a communication from the Postal Department dated 14-10-2012, stating that the order was delivered to the appellant on 25-2-2011. However, the Appellant's Advocate referred to a Supreme Court judgment and other legal precedents to argue that mere delivery to the appellant's servant does not constitute valid service upon the appellant. The lack of signatures or acknowledgment from the appellant raised doubts about the actual receipt of the order.

3. Applicability of legal precedents regarding service of orders:
The Advocate for the Appellant relied on the Supreme Court judgment in the case of Vinod S. Chakor Pvt. Ltd. to argue that the principles laid down by the Court regarding service of notices apply in this case as well. Additionally, reference was made to the case of Margra Industries Ltd. v. CCE, Delhi and CCE Ltd. v. Mohan Bottling Company Pvt. Ltd. to support the argument that proof of delivery is essential for considering an order as served. The Appellant's assertion that no acknowledgment or proof of receipt was provided by the Revenue further strengthened the argument that the appeal was filed in time once the order was actually received.

In conclusion, the Appellant's COD application was allowed based on the observations that the order-in-Appeal was received by the Appellant only on 11-1-2012, as evidenced by the contact from the Range Superintendent, and the appeal was filed on 21-2-2012, within the required timeframe. The judgment highlighted the importance of proper service of orders and the burden of proof on the Revenue to establish the delivery of such orders to the concerned party.