2015 (7) TMI 350 - AT - Service Tax

Maintainability of appeal - Delay in filing appeal - Denial of CENVAT Credit - Rent a cab service - Held that - Even though speed post is considered as equivalent to registered post, recently the Tribunal has rendered another decision wherein it has been held that mere proof of dispatch is not sufficient and according to provisions of Section 37C(2), only when a decision, order, summons or notice is tendered or delivered by post, the provisions of statute can be considered to have been fulfilled. Admittedly in this case department does not have the acknowledgement and in view of the fact that subsection (2) of Section 37C provides that any decision or order can be considered as served when it is tendered or delivered by post, prima facie unless the proof of delivery is available, it cannot be said that obligation cast on the department has been fulfilled. Therefore, even if the order is sent by speed post, if the evidence is available with the department that it has been delivered, the decision of Hon ble High Court of Orissa would be applicable. Since the appeal has been filed within one month of the actual date of receipt according to the CA, the appeal has to be considered to have been filed in time. All the decisions relate to the availment of credit before registration by the receiver of inputs and not by the supplier. Since in any case the matter is proposed to be remanded, I would not like to express any opinion on this issue and the original authority will be free to consider the issue in the light of the decision which may be cited before me and law applicable. - none of the documents have been verified as to the correctness and eligibility because the credit has been rejected on the ground that the inputs were supplied by unregistered dealers. This is another reason why matter is required to be remanded. - Decided in favour of assessee.

Summary

Issues:
1. Condonation of delay in filing appeal due to non-receipt of order-in-appeal.
2. Validity of service by speed post as equivalent to registered post.
3. Interpretation of Section 37C(2) regarding proof of delivery for service of orders.
4. Admissibility of CENVAT credit on cars purchased from unregistered dealers.
5. Verification of documents and eligibility for abatement in CENVAT credit.

Analysis:
1. The appellant sought condonation of a 901-day delay in filing the appeal, claiming non-receipt of the order-in-appeal. The CA argued that the order was not received, and the delay should be condoned as the order was sent via speed post, not a proper mode of service. The Tribunal noted recent decisions requiring proof of delivery for service fulfillment. As the department lacked acknowledgment of delivery, the delay was condoned, considering the appeal filed within a month of actual receipt.

2. The AR cited a High Court decision equating service by speed post to registered post. However, the Tribunal emphasized the need for proof of delivery under Section 37C(2) for service fulfillment. Without evidence of delivery, the obligation on the department remained unfulfilled. Thus, the delay was condoned based on the actual date of receipt.

3. Even if legal arguments failed, the Tribunal could condone the delay in the interest of justice, with no time limit for such condonation. Considering the appellant's explanation, business closure, and absence of benefit in filing late appeals, the delay was condoned. The pre-deposit requirement was waived, and the appeal proceeded for final decision.

4. Regarding CENVAT credit denial on cars purchased from unregistered dealers, the Tribunal noted the appellant's argument for credit admissibility post-dealer registration. Referring to relevant decisions, the matter was proposed for remand to the original authority for fresh adjudication. Documents' verification and eligibility for abatement in CENVAT credit were highlighted for further examination upon remand.

5. Consequently, the matter was remanded to the original adjudicating authority for a fresh assessment, ensuring a reasonable opportunity for the appellant to present their case. The COD application, stay petition, and appeal were disposed of accordingly.