2016 (6) TMI 580 - AT - Service Tax

Condonation of delay - Violation of principles of natural justice - Appeal dismissed as being time barred, without even giving an opportunity for personal hearing - Date of receiving the order in ST-4 shown wrongly - Held that - the appellants were not given a chance of personal hearing which is blatant violation of the principles of natural justice. By such an act, the appellants have been burdened with an unnecessary litigation. The appellants filed appeal on 27/03/2013. The appeal ought to have been filed on or before 06/03/2013. The Commissioner(Appeals) if satisfied that appellant was prevented by sufficient cause from presenting the appeal within period of two month, can allow it to be presented within a further period of one month. The appeal is therefore within the time limit by which the Commissioner(Appeals) can condone delay. On such score, I am of the opinion that this is a fit case to be remanded to the Commissioner(Appeals) who may consider the delay application filed by appellants. The appellant submitted that the error committed in Form ST-4 while noting the date of receiving the order has been repeated in the delay petition also. Hence, the Commissioner(Appeals) is directed to give chance to the appellant to amend the delay petition as well as Form ST-4 with regard to the date of receiving the order and also number of days of delay mentioned in the delay petition. - Appeal allowed by way of remand

Summary

Issues: Appeal dismissed as time-barred due to incorrect date of receiving the order and lack of opportunity for personal hearing.

Analysis:
1. Issue of Time-barred Appeal: The appellant filed a refund claim under Rule 5 of CENVAT Credit Rules, 2004, which was partly disallowed by the original authority. The appeal before the Commissioner(Appeals) was dismissed as time-barred because the date of receiving the order was mentioned as 20/01/2013 in Form ST-4, while the original order was dated 24/12/2012. The Commissioner(Appeals) relied on Section 85(3A) of the Finance Act, 1994, which limits the power of condonation of delay. The appellant argued that the order was actually received on 07/01/2013, as evidenced by an acknowledgment countersigned by an Inspector of Excise. The appellant contended that the appeal should have been filed by 06/03/2013, and since it was filed on 27/03/2013, it was within the time limit for condonation of delay by the Commissioner(Appeals).

2. Violation of Natural Justice: The appellant's counsel argued that the Commissioner(Appeals) erred in not granting a personal hearing, depriving the appellant of the opportunity to present the correct date of receiving the order. The lack of a personal hearing was deemed a violation of the principles of natural justice. The Tribunal acknowledged this argument and emphasized that the denial of a personal hearing burdened the appellant with unnecessary litigation. The Tribunal held that the Commissioner(Appeals) had the power to condone the delay up to one month and that the appellant's appeal was within the permissible time frame for such condonation.

3. Remand and Directions: The Tribunal, convinced by the appellant's arguments, set aside the impugned order and allowed the appeal by way of remand. It directed the Commissioner(Appeals) to consider the delay application filed by the appellant, allowing the appellant to amend the delay petition and Form ST-4 to correct the date of receiving the order. The Commissioner(Appeals) was instructed to dispose of the case as per law after considering the corrected information. The Tribunal emphasized the importance of granting a fair opportunity to the appellant to present their case and rectify any errors in the documentation.

In conclusion, the Tribunal found in favor of the appellant, setting aside the order dismissing the appeal as time-barred, and remanded the case to the Commissioner(Appeals) for further consideration in light of the corrected information and the principles of natural justice.