2015 (8) TMI 540 - AT - Service Tax

Delay in filing of appeal before commissioner (appeals) - Bar of limitation - Held that - Appellant for the first time has raised an issue before this forum that certified copy of the order in addition to original copy of the order is necessary for the purpose of filing an appeal. However, this plea was not taken before the ld. Commisisoner(Appeals) and therefore he had no occasion to record his findings on this issue. Accordingly I am of the opinion that the case requires to be remitted back to the ld. Commissioner(Appeals) for his findings on the plea taken now by the Appellant and therefore the Commissioner(Appeals)s order is set aside - Decided in favour of assessee.

Issues:

1. Delay in filing appeal due to non-receipt of certified copy of order.
2. Requirement of certified copy for filing appeal.
3. Responsibility of the appellant in obtaining certified copy for appeal.

Issue 1: Delay in filing appeal due to non-receipt of certified copy of order

The appellant argued that they did not receive the original order passed by the adjudicating authority, and only became aware of the order on 30.8.2010 when requested to pay the adjudged amount. They claimed to have requested a copy of the order-in-original immediately and received a certified copy on 5.4.2011. The appellant contended that the delay in filing the appeal was due to the late receipt of the certified copy, which was necessary for proceeding with the appeal. They cited precedents where a certified copy was deemed essential for filing an appeal.

Issue 2: Requirement of certified copy for filing appeal

The appellant contended that the preamble of the order from the adjudicating authority stated that the original copy provided to them was for private use only and that a certified copy with a court fee stamp was necessary for filing an appeal. They argued that the delay in obtaining the certified copy was a valid reason for the delay in filing the appeal. The appellant highlighted that various High Courts had upheld the requirement of a certified copy for appeal purposes.

Issue 3: Responsibility of the appellant in obtaining certified copy for appeal

The Revenue's representative argued that the copy of the order-in-original was served to the appellant on 19.8.2010, as evidenced by postal endorsements. They claimed that the appellant's delay in requesting a copy of the order and their casual approach indicated negligence on their part. The Revenue contended that it was the appellant's responsibility to ensure the order was certified for appeal filing, and the appellant's lack of diligence was apparent in their actions.

In the judgment, it was noted that the appellant had raised the issue of the necessity of a certified copy for the first time before the tribunal, whereas this plea was not presented before the Commissioner(Appeals). As a result, the case was remitted back to the Commissioner(Appeals) for a fresh examination of the limitation issue in light of the appellant's contentions. The Commissioner(Appeals)'s order was set aside with directions to decide on the limitation issue after considering the appellant's argument regarding the requirement of a certified copy for filing an appeal. Ultimately, the appeal was allowed by way of remand for further proceedings.

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