2016 (8) TMI 790 - HC - Central Excise

Rejection of cross objections as time barred - Whether the learned Tribunal was justified in dismissing the appeal of the appellant on account of delay in filing of appeal before the respondents as the order in original passed by the Additional Commissioner (Appeals) was never delivered to the appellant - appellant has been providing space for installing the hoardings to the advertising agency and charged advertisement tax for the same - Held that - admittedly copy of the order was sent to the appellant by speed post. Section 27 of General Clauses Act provides that presumption of service would be raised when document is delivered by registered post. So far as the speed post is concerned, the provision has been made in the Central Excise Act, 1944, however, no such corresponding amendment was made in the General Clauses Act. Resultantly, no presumption can be raised in respect of document sent by speed post. However, under Section 114 of Evidence Act, such presumption can be raised against the appellant that when the order was sent to them by speed post, it would have been reached in ordinary coarse of nature, and therefore, burden lies on the appellant to prove that speed post sent by the respondents was not delivered to them as provided for by sub Section 2 of Section 37-C of the Act. When no such evidence is produced by the appellant, it may be presumed that the speed post must have reached the office of the appellant in due course. It was observed by the Appellate Authority that cross-objection was not filed within 45 days of the notice received by them. According to provisions of Order 41 Rule 22 of CPC, cross objections should be filed after receiving notice of appeal within 30 days. However, in the Act, no such time period is prescribed. Time fixed by the learned Appellate Authority was fixed by him and there was no statutory provisions against this time period fixed by him and accordingly, when the authorized representative appeared before the Appellate Authority on 26.11.2010 and he was granted time by the authority to file cross-objections within one week, which was filed on 03.12.2010, and which were taken on record, it cannot be said that cross objections filed by the appellant was not filed in time and were time barred. Accordingly, in considered opinion of this Court, the Appellate Authority and the learned appellate Tribunal erred while taking the cross objections also as time barred. Hence, this appeal is partly allowed in respect of cross objections filed by the appellant and dismissed in respect of appeal filed by the appellant. - Appeal disposed of

Summary

Issues:
Appeal against order passed by Commissioner (Appeals) and Appellate Tribunal - Delay in filing appeal - Imposition of penalty under Section 76 of Finance Act, 1994 - Dismissal of cross-objections - Service of decisions and orders - Burden of proof for non-receipt of documents - Time limit for filing cross-objections.

Analysis:
1. The Central Excise Appeal was filed challenging the order passed by the Commissioner (Appeals) and the Appellate Tribunal. The main issue raised was the dismissal of the appeal due to a delay in filing caused by the non-receipt of the original order by the appellant. The question of law was whether the Tribunal was justified in dismissing the appeal based on the delay in filing.

2. The appellant, a statutory body under the Madhya Pradesh Municipal Corporation Act, was providing space for hoardings to advertising agencies and charging advertisement tax. An enquiry initiated by the STTF branch led to a show-cause notice for Service Tax and Education Cess. The original order confirming the tax demand was passed, but the appellant claimed non-receipt of the order.

3. The Appellate Authority observed that the penalty under Section 76 of the Finance Act, 1994 was imposable on the appellant, contrary to the original order. The appeal filed by the Revenue was sent to the appellant for cross-objections, which were filed beyond the prescribed time limit. The Tribunal upheld the dismissal of the appeal due to the delay in filing.

4. The respondent provided evidence of sending the order by speed post, but no proof of delivery was received. The legal provisions regarding service of decisions and orders were cited, emphasizing the burden of proof on the appellant to show non-receipt. The judgment referred to a similar case where the burden of proof was on the assessee for registered post.

5. In the context of cross-objections, the Appellate Authority's time limit was challenged. The Court found no statutory provision for the time limit set by the Authority and allowed the cross-objections filed by the appellant. The order of the Appellate Authority and Tribunal regarding cross-objections was set aside, remanding the matter for proper disposal.

6. The judgment concluded by partially allowing the appeal, setting aside the orders on cross-objections, and remanding the case for further proceedings. The Court emphasized the need for compliance with legal provisions and proper consideration of timelines for filing appeals and objections in tax matters.