2015 (2) TMI 48 - AT - Service Tax

Denial of refund claim - Bar of limitation - Misrepresentation of facts - Held that - It is observed that both Orders-in-Original as referred above have duly been served on the representative of the Company. I am not convinced with the pleadings that orders should not have been handed over to Companys representative who have not been nominated through the Resolution of a Company. As it came out that Shri Gaurav Tiwari, employee of the Company has been interacting with the Central Excise Department by receiving and handing over of letters on behalf of the company Orders-in-Original were received by him after coming to the Range Officer on 26/06/2013. There is a misrepresentation by the appellants that Orders-in-Original were actually received on 28/06/2013 in place of 26/06/2013 in contra to the factual position. Appeals were dismissed by the Commissioner (appeal) on the ground of limitation as appeals should have been filed on 25/08/2013 whereas those were filed late, i.e., on 27/08/2013. There has been misrepresentation on the fact of date of receipt of Orders-in-Original. Commissioner (appeal) also held that no reason for late filing of the appeals was brought on record by the appellants. No specific request for condonation of delay was made. Even issue of condonation of delay was not looked into by the Commissioner (appeal) as in the main portion of the appeals, only request relating grant of refund to the appellants was made. - Decided against assessee.

Summary

Issues:
1. Appeal against Orders-in-Appeal dismissed on grounds of limitation.
2. Contention regarding communication of orders to the Company's representative.
3. Allegation of misrepresentation by the appellants.
4. Dismissal of appeals by Commissioner (Appeal) upheld.

Analysis:

Issue 1:
The appellants filed appeals against Orders-in-Original rejecting their refund claims. However, the Commissioner (Appeal) dismissed the appeals citing a limitation issue as they were filed late on 27/08/2013 instead of the required date of 25/08/2013. The Commissioner did not find any valid reason for late filing or any request for condonation of delay, leading to the dismissal of the appeals.

Issue 2:
The appellants argued that all communications should be directly sent to the Directors of the Board of Companies or authorized persons. They claimed that the orders were not properly delivered as they were handed over to an employee of the company, who was not authorized to receive such communications. On the contrary, the office letter from the Tax Range indicated that the orders were received by the appellants' representative on 26/06/2013, as evidenced by the entry in the Letter Despatch Register.

Issue 3:
The Commissioner (Appeal) found that there was a misrepresentation by the appellants regarding the date of receipt of the Orders-in-Original. The Commissioner noted that the appellants altered the date of receipt to show compliance with the prescribed time limit for filing appeals. This misrepresentation was considered a deliberate act to mislead, as the actual date of receipt was 26/06/2013, not 28/06/2013 as claimed by the appellants.

Issue 4:
The Appellate Tribunal upheld the Commissioner (Appeal)'s decision to dismiss the appeals. The Tribunal agreed that the appeals were filed beyond the limitation period and found no valid reason for intervention. The Tribunal also rejected the appellants' contention that a resolution was required to nominate a person to receive letters, as the same person had been dealing with the department without any formal resolution. The Tribunal concluded that the misrepresentation by the appellants and the lack of a valid reason for late filing justified the dismissal of the appeals.

In conclusion, the Appellate Tribunal upheld the Commissioner (Appeal)'s decision to dismiss the appeals due to late filing and misrepresentation by the appellants, emphasizing the importance of adhering to prescribed timelines and acting in good faith in legal proceedings.