2014 (6) TMI 29 - AT - Service Tax

Maintainability of appeal - proof of delivery of order in original - Commissioner (Appeals) has dismissed the appeal on time-bar by observing that the same stands filed even after condonable period. - Held that - unless the impugned documents were sent by registered post under registered AD cover. In the present case, there is nothing on record to show that the impugned order was sent under registered post. Further, the appellants by writing the letter to the Superintendent in August, 2009 have intimated to the Revenue about non-receipt of the letter - Matter remanded back - Decided in favour of assessee.

Summary

Issues involved: Appeal dismissal on time-bar, non-receipt of impugned order, validity of service through speed post, reliance on legal judgments, remand to verify factual position.

Analysis:
1. Appeal Dismissal on Time-Bar: The Commissioner (Appeals) dismissed the appeal as time-barred, citing that it was filed after the condonable period. However, the appellant argued that they only became aware of the impugned order after the jurisdictional Superintendent directed them to deposit the disputed amount. They filed the appeal within one month of receiving the order, challenging the Commissioner's finding that the order was delivered on time due to being sent via speed post. The appellant referenced the Margra Industries Ltd. case, which stated that speed post delivery alone does not constitute valid service without actual receipt.

2. Non-Receipt of Impugned Order: The appellant claimed they did not receive the original order dated 17-2-2009 until later when the Superintendent directed them to deposit the disputed amount. They promptly responded that they had not received any order from the Assistant Commissioner's office. Subsequently, the Range Superintendent provided a copy of the order-in-original. The appellant then filed an appeal within one month of receiving the order, disputing the Commissioner's assertion that the order was deemed delivered due to the speed post dispatch.

3. Validity of Service Through Speed Post: The appellant contested the assumption of timely delivery based on the speed post dispatch, citing instances where speed post deliveries were misplaced. The appellant argued that the order cannot be considered received solely based on the dispatch method without actual proof of delivery. The Commissioner's reliance on the speed post dispatch for deeming the order delivered was questioned by the appellant.

4. Reliance on Legal Judgments: The judgment referred to legal precedents, including the Margra Industries Ltd. case and the Punjab & Haryana High Court case of C.C.E., Ludhiana v. Mohan Bottling Co. (P) Ltd., to support arguments regarding the validity of service through speed post and the requirement of registered post for certain circumstances. The appellant and the JCDR presented contrasting interpretations of legal judgments to support their respective positions.

5. Remand to Verify Factual Position: The Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) to investigate the factual aspects concerning the sending of the order under registered AD cover. The appellant's claim of non-receipt was to be examined further, allowing them to challenge the presumption of delivery by seeking information from the postal authority. The decision to remand the case aimed to clarify the circumstances surrounding the delivery of the impugned order and the appellant's timely filing of the appeal.