2014 (8) TMI 479 - AT - Service Tax

Appeal before Commissioner (Appeal) - Period of limitation - Date of order-in-original - Violation of principle of natural justice - Opportunity of hearing not given to assessee - Appeal dismissed as barred by limitation - Held that - Counsel had also submitted reply to the RTI filed by them with regard to service of Order-in-Original, wherein, it has been mentioned that the order was not sent by Registered Post as per the provisions of Section 37C of the Central Excise Act, 1944, which has been made applicable to service tax cases also. The order is to be sent through a Registered Post and as the same has not been done, therefore, in the absence of any contrary evidence, we hold that the date of communication of the Order-in-Original is 13-12-2011, and hence appeal is well within the prescribed time-limit. Accordingly, we set aside the impugned order and in the interest of justice remand the case to the Commissioner (Appeals) to pass a fresh order on merits after giving the appellants a reasonable opportunity of being heard in their defence - Decided in favour of assessee.

Summary

Issues:
1. Appeal dismissed as filed beyond the period of limitation.
2. Date of communication of the Order-in-Original.
3. Requirement of pre-deposit of the impugned demand.
4. Appellant's opportunity of being heard in defense.

Analysis:

1. The appellant filed an appeal against an impugned order, which was dismissed due to being filed beyond the period of limitation. The Order-in-Original was passed on a specific date, and the appeal was filed before the Commissioner (Appeals) within three days of the communication of the order. The appellant argued that the appeal was within the prescribed time-limit as the order was communicated to them on a later date. The Commissioner (Appeals) dismissed the appeal without considering the merits. The appellant appealed this decision to the Tribunal.

2. The appellant's counsel argued that the Order-in-Original was not communicated to them in accordance with the provisions of Section 37C of the Central Excise Act, 1944, which also applies to service tax cases. It was highlighted that the order was not sent via Registered Post as required by law. Based on the reply to an RTI query, it was established that the order was communicated to the appellant on a specific date. The Tribunal held that the date of communication of the Order-in-Original was crucial for determining the appeal's timeliness. Consequently, the Tribunal found that the appeal was well within the prescribed time limit, leading to the setting aside of the impugned order.

3. The Tribunal considered the issue of pre-deposit of the impugned demand. Given the narrow compass of the matter, the Tribunal waived the requirement of pre-deposit and proceeded to take up the appeal for final disposal. This decision was made after reviewing the contentions raised by the appellant's counsel regarding the time-limit for filing the appeal.

4. In the interest of justice, the Tribunal remanded the case to the Commissioner (Appeals) for a fresh order on merits. The Tribunal emphasized the importance of providing the appellants with a reasonable opportunity to be heard in their defense. The stay application was also disposed of accordingly. The Tribunal's decision aimed to ensure a fair and just consideration of the case based on the merits and procedural requirements.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision on each aspect of the case.