2014 (9) TMI 840 - AT - Central Excise

Maintainability of appeal before commissioner (appeal) - period of limitation - date of service tax order in original dispatched by registered post without acknowledgement due - Held that - Dispatch of the Order-in-Original dated 31-8-2001 passed by the Assistant Commissioner was by registered post and not by registered post with acknowledgement due, which is the requirement of Section 37C. Therefore, sending of the order by registered post without acknowledgement due cannot be said to be the proper service of the order as per the requirement of law. As regards the Revenue s plea that another copy of the order had been served on the respondent as it evident from the initials of the respondent s employee on the covering letter dated 10-12-2002 of the department, forwarding the order, the plea of the respondent is that no order was enclosed with this letter. We agree with the findings of the Commissioner (Appeals) that from this letter, there is no indication that the person who had received this letter had also received the Order-in-Original dated 31-8-2008. In view of this, we agree with the Commissioner (Appeals) s findings that the appeal had been filed well within time and is not time-barred. - Commissioner (Appeals) has not gone into the merits of the case and has simply observed that he agrees with the findings of his predecessor in the Order-in-Appeal dated 29-8-2003 - Matter remanded back decision on merit.

Summary

Issues:
1. Time limitation for filing appeal before Commissioner (Appeals).
2. Proper service of Order-in-Original.
3. Merits of the case not examined by Commissioner (Appeals).

Analysis:
1. Time Limitation for Filing Appeal:
The case involved a dispute regarding the time limitation for filing an appeal before the Commissioner (Appeals). The Tribunal found that the Order-in-Original dated 31-8-2001 was dispatched by registered post, not by registered post with acknowledgement due as required by law. The Commissioner (Appeals) had held that the appeal was filed within time, considering the proper service of the order. The Tribunal agreed with this finding, stating that the appeal was not time-barred.

2. Proper Service of Order-in-Original:
Regarding the proper service of the Order-in-Original, the Tribunal noted that the Revenue claimed another copy was served on the respondent based on initials on a covering letter. However, the respondent denied receiving the order with the letter. The Tribunal concurred with the Commissioner (Appeals) that there was no clear evidence of the Order-in-Original being served along with the covering letter. Consequently, the Tribunal upheld the decision that the appeal was filed within the prescribed time.

3. Merits of the Case Not Examined:
The Tribunal observed that the Commissioner (Appeals) did not delve into the merits of the case but merely concurred with the findings of the previous order. As per the Tribunal's direction in the remand order, the Commissioner (Appeals) should have examined the case on its merits after establishing the appeal was within the time limit. Therefore, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a decision on the merits of the case.

In conclusion, the Tribunal clarified the time limitation for filing the appeal, emphasized the importance of proper service of legal documents, and directed a reevaluation of the case on its merits by the Commissioner (Appeals) as per the remand order.