2020 (2) TMI 1476 - AT - Service Tax

Principles of natural justice - appeal rejected as time-barred, without passing any order on merits - HELD THAT - There is no discussion or finding on merits by the First Appellate Authority. We also find it to be very strange as to how the First Appellate Authority has recorded as to having seen that the appellant had received the Order-in-Original on 11.11.2014, which is nobody s case. The stand of the Revenue that the appellant has received the Order-in-Original, based on the endorsement of the postal authorities, is not helping us in any way but rather is creating more confusion. The date of despatch as per the above is 15.11.2014, but the date of receipt is 13.11.2014 In view of this and on an overall analysis of the submissions of both the parties and the documents placed by either side, it is clear to us that the Revenue has not been able to establish the date of receipt by the recipient and hence, we have no choice but to go with the contentions of the assessee as regards receipt of the order is concerned. What emerges by this is that the first appeal filed by the assessee before the First Appellate Authority is within the prescribed period of limitation. The appellant should not suffer for no fault on its part and hence, it is deemed proper to set aside the impugned order with a direction to the First Appellate Authority to pass a fresh order on merits after hearing the appellant and following the principles of natural justice - appeal partly allowed, by way of remand.

Summary

Issues Involved:
Appeal against rejection as time-barred without order on merits due to disputed date of receipt of Order-in-Original.

Analysis:
The appeal was filed against the rejection of the appeal as time-barred without passing any order on merits by the First Appellate Authority. The appellant contended that they did not receive the Order-in-Original dated 04.06.2014 and only became aware of it when approached by Revenue officials for recovery. The appellant claimed to have received only a photocopy with a despatch seal dated 11.11.2014, while the Revenue's acknowledgment varied in dates. The Revenue asserted the appellant received the order based on postal authorities' endorsement. The Tribunal noted the absence of any discussion on merits by the First Appellate Authority and discrepancies in dates on documents. The Tribunal found the Revenue failed to establish the date of receipt crucial for the limitation period for filing the appeal. Consequently, the Tribunal sided with the appellant's contentions regarding receipt, concluding the appeal was within the prescribed limitation period.

The Tribunal, after considering the submissions and documents, concluded that the Revenue could not prove the date of receipt by the appellant. Therefore, the impugned order was set aside, directing the First Appellate Authority to pass a fresh order on merits following natural justice principles. The Tribunal clarified that it did not express any opinion on merits but allowed the appeal partly by remanding the case for a fresh order. The decision was pronounced openly on 06.02.2020 by the Tribunal comprising Mr. C. J. Mathew, Member (Technical), and Mr. P. Dinesha, Member (Judicial).