2016 (3) TMI 526 - AT - Service Tax

Stay application - Appeal rejected against primary adjudication authority - Period of limitation - Orders claimed to have been sent by speed post were not received and when received the copies thereof, filed the appeals within the prescribed period - Held that - as appeals were filed within the stipulated period after the appellants obtained copies of the primary adjudication orders, the requirement of pre-deposit is waived off the appeals are allowed. - Stay granted

Summary

Issues:
- Appeal against Orders-in-Appeal rejected as time-barred due to late filing.
- Contention regarding service of primary adjudication orders by speed post.
- Interpretation of Section 37C of Central Excise Act, 1944.
- Comparison of judgments supporting different contentions.
- Retrospective applicability of amendment to Section 37C(1)(a).
- Requirement of proof of delivery for service of orders.
- Impact of Supreme Court's dismissal of Special Leave Petition (SLP) on High Court judgments.

Analysis:
The judgment revolves around appeals filed against Orders-in-Appeal, rejected for being time-barred. The appellants argued that the primary adjudication orders, required to be sent by Registered Post with Acknowledgement Due (RPAD), were not received, justifying the delayed appeals. They cited judgments supporting their claim, emphasizing the non-inclusion of speed post as a valid mode of service under Section 37C of the Central Excise Act, 1944 before 10.05.2013.

On the contrary, the Revenue contended presumed service through Registered Post with Acknowledgement Due and highlighted the retrospective applicability of the amendment allowing speed post with proof of delivery. However, the Revenue lacked evidence of delivery of the impugned orders, despite dispatching them by speed post. The judgment analyzed various High Court decisions, including the Orissa High Court's affirmation by the Supreme Court, to determine the validity of the contentions put forth.

The Tribunal examined the legal provisions and precedents, concluding that during the relevant period, sending orders by speed post did not comply with the requirement of RPAD under Section 37C(1)(a). The absence of proof of delivery further weakened the Revenue's stance, even with supportive judgments equating speed post to registered post. The dismissal of the SLP by the Supreme Court clarified that the Orissa High Court judgment did not merge with the Supreme Court's orders, maintaining its vitality as a High Court order.

Ultimately, considering the timely filing of appeals post-receipt of orders, the Tribunal waived the pre-deposit requirement and remanded the appeals to the Commissioner (Appeals) for a merit-based decision. This comprehensive analysis highlights the intricacies of service requirements, retrospective applicability, and the hierarchy of judicial decisions, ensuring a fair and just outcome for the appellants.