2015 (4) TMI 362 - AT - Service Tax

Condonation of delay - Non receipt of order - Held that - It is clear that order was only dispatched and no evidence is available of receipt. According to the decision of the Tribunal referred to above in reproduced paragraphs, it is necessary that the order should reach the appellant. In this case, according to learned C.A., the appellant did not know that order has been sent to them and when they received Order-in-Original in a subsequent case, they came to know that earlier order has been passed and thereafter, they made a request to the department on 2/1/2013 and received a copy on 10/1/2013 and thereafter, the appellant filed appeal on 31/1/2013. In view of above discussions referred to above, appeal having been filed within time, the impugned order is set aside and since there is no order on merits, the matter is remanded to the Commissioner (Appeals) for fresh decision on merits treating the appeal as filed within the limitation period prescribed under the law - Delay condoned.

Summary

Issues: Appeal rejection due to filing beyond condonable period, evidence of order service required, relevance of dispatched order without proof of receipt.

In the judgment by the Appellate Tribunal CESTAT BANGALORE, the appeal was rejected by the Commissioner (Appeals) on the grounds of being filed beyond the condonable period. The appellant argued that there was no evidence of the order being served, while the department contended that dispatching the order by the prescribed procedure was sufficient proof of service. The appellant cited a Tribunal decision stating that dispatching the order alone was not enough to prove receipt. The decision highlighted Section 37C(2) of the Central Excise Act, emphasizing the importance of proof of delivery when serving an order by registered post. The Tribunal concluded that proof of delivery to the assessee is crucial in determining the communication date. As the order was only dispatched without evidence of receipt, the Tribunal agreed with the appellant that the order must reach them for the appeal to be valid. The appellant claimed they only found out about the order after receiving a subsequent one, leading them to request a copy and file the appeal within the prescribed time limit. Consequently, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a fresh decision on merits, treating the appeal as filed within the limitation period.

This judgment delves into the procedural requirements for serving orders under the Central Excise Act, emphasizing the necessity of proof of delivery when using registered post. It clarifies that mere dispatch of an order is insufficient to establish communication without evidence of receipt by the intended party. The decision underscores the importance of ensuring that the party to whom the order is addressed actually receives it for the communication to be deemed effective. Additionally, the judgment highlights the significance of adhering to the prescribed timelines for filing appeals, with the Tribunal allowing the appeal in this case as it was filed within the limitation period once the appellant became aware of the order. The ruling serves as a reminder of the procedural intricacies involved in serving legal documents and the implications of timely filing appeals within the statutory limits.