2018 (11) TMI 1824 - AT - Service Tax

Time Limitation - Maintainability of appeal - appeal is rejected on the issue of time-bar by observing that the impugned order, was passed by the Adjudicating Authority on 31-3-2015, whereas the appeal stand filed before him on 25-1-2016 - HELD THAT - The Appellate Authority has gone by the report of the office of the Assistant Commissioner indicating the dispatch of the order by speed post. There is no evidence of receiving of the order by the appellant. In terms of the provisions of Section 37C of Central Excise Act, 1944, any decision or order passed by an Authority shall be served by registered post with acknowledgement Due or by speed post with proof of delivery. As such it is seen that the said Section requires serving of any order either by registered post or by speed post with proof of delivery. However, there is no proof of delivery produced by the Revenue in the present case. In such a scenario, Commissioner (Appeals) was not right by taking the date of dispatch as the proof of delivery and to calculate the period from the said date by considering the same as relevant date. On the other hand the appellant have produced an affidavit of their employee to substantiate their plea that the impugned order was received by them on 7-12-2015 only. In the absence of any proof of delivery produced by the Revenue, we have to accept the date of receipt as shown by the appellant, in which case the appeal filed on 25-1-2016 would be within time - matter remanded to Commissioner (Appeals) for decision on merits.

Summary

Issues: Time-bar for filing appeal

In this case, the main issue revolves around the time-bar for filing an appeal. The Commissioner (Appeals) rejected the appeal on the grounds of being time-barred as the impugned order was passed on 31-3-2015, and the appeal was filed on 25-1-2016. The Commissioner observed that the appellant's claim of receiving the order on 7-2-2015 could not be accepted, as the order was dispatched via speed post on 31-3-2015. The appellant argued that they personally procured the order on 7-12-2015, well within the 3-month period prescribed by law for filing an appeal from the date of receipt of the order.

The Appellate Tribunal found that there was no evidence of the order being received by the appellant, despite the dispatch by speed post as per Section 37C of the Central Excise Act, 1944. The Tribunal noted that the section requires proof of delivery when serving an order by registered post or speed post. Since the Revenue failed to produce any proof of delivery, the Tribunal accepted the appellant's claim that they received the order on 7-12-2015. Consequently, the appeal filed on 25-1-2016 was deemed to be within the prescribed time limit.

Therefore, the Tribunal set aside the Commissioner (Appeals)'s decision on the time-bar issue and remanded the matter for further consideration on the merits. This judgment highlights the importance of providing proof of delivery when serving orders and the significance of the actual date of receipt in determining the timeliness of filing appeals in legal proceedings.