2014 (3) TMI 947 - AT - Service Tax

Period of limitation for filing an appeal before Commissioner (Appeals) - Whether the order of dismissal of appeal is time barred by the Commissioner (Appeals) is correct in the eyes of law or not - Held that - They have received the order on 14.02.2013. As they have not received the order before that, and the case law relied by the appellant in Wellman Hindustan Ltd. (2009 (6) TMI 664 - CESTAT, MUMBAI) where the copy of the order was tendered physically and same was received by someone. Same is the contention of the appellant in the matter in hand, and in support of the same, they have filed an affidavit. When an affidavit has been filed by the appellant and same has not been contravened by the department, affidavit is having an evidential value. Accordingly, I hold that appeal is filed by the appellant within time - Matter remanded back - Decided in favour of assessee.

Summary

Issues:
1. Appeal dismissed as time-barred by Commissioner (Appeals).
2. Applicability of Section 85(3) of the Finance Act, 1994.
3. Filing of appeal within the prescribed time limit.
4. Relevance of the case law cited by the appellant.
5. Jurisdiction of Single Member Bench on classification issues.

The judgment pertains to an appeal against an order dismissing the appeal as time-barred by the Commissioner (Appeals). The appellant received the Adjudication order on 27.10.2012 and filed the appeal on 15.4.2013, beyond the 60-day period prescribed by Section 85(3) of the Finance Act, 1994. The Commissioner (Appeals) dismissed the appeal as beyond the condonable period of 90 days. The appellant contended that they were unaware of the order until 14.02.2013, and filed the appeal promptly after receiving the certified copy. The appellant relied on the case law of Wellman Hindustan Ltd. 2010 (261) ELT 706 to support their argument.

The argument presented by the appellant was challenged by the ld. AR, who contended that the issue involved classification and should be heard by a Division Bench, not a Single Member Bench. The AR also argued that the case law cited by the appellant was irrelevant to the present case. However, the Single Member Bench found no mention of classification in the impugned order, rejecting the AR's argument.

Upon hearing both sides, the Single Member Bench addressed the core issue of whether the appeal was time-barred. The appellant claimed that they only received the order on 14.02.2013 and filed the appeal promptly thereafter. Citing the case law precedent of Wellman Hindustan Ltd., the appellant argued that physical receipt of the order triggers the start of the appeal period. The appellant supported their claim with an affidavit, which went uncontested by the department. The Single Member Bench accorded evidential value to the affidavit and concluded that the appeal was filed within the stipulated time frame. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals).

In the final disposition, the appeal and the stay application were both disposed of by the Single Member Bench. The judgment highlights the importance of timely filing appeals within statutory limits and the evidentiary value of affidavits in establishing facts before the Tribunal.