2016 (11) TMI 643 - AT - Service Tax

Restoration of appeal - Condonation of delay - Held that - I find that this Tribunal has passed the order without representation or without appearance on behalf of the appellant despite the adjournment request which was not recorded. Further on going through the finding of the Ld. Commissioner (Appeals), I find that the Ld. Commissioner (Appeals) has taken the date of dispatch of the order as a date of communication. The Ld. Commissioner also admitted that the appeal was filed against the order copy issued by the department on request of the appellant. However, the delivery of the order dispatched on 18.4.2013 and acknowledgement thereof has not been verified by the Commissioner (Appeals), therefore merely by taking the date of dispatch as the date of communication of the order does not appear to be proper. Since the vital aspect has not been properly considered, the appeal deserves to be restored. Therefore the appeal is restored in its original number. Accordingly, the stay application and COD are also restored. Registry is directed to list the matter in due course.

Summary

Issues: Restoration of appeal dismissed as non-maintainable due to time bar.

Analysis:
1. The appellant filed a miscellaneous application seeking restoration of an appeal dismissed as non-maintainable due to exceeding the stipulated time period of 90 days (60 days + 30 days condonable) before the Commissioner (Appeal).
2. The appellant's counsel argued that the appeal was dismissed as time-barred by the Commissioner (Appeal) based on the date of dispatch of the order, which the appellant claimed was not received. The appellant received a duplicate order copy on 5.7.2013 and filed the appeal on 23.8.2013 within the normal 60-day period, thus contending that the appeal was not time-barred.
3. The Revenue's representative objected to the restoration of the appeal, stating that the order copy was issued by the wrong authority, making the appeal improper. The Revenue argued that the Commissioner (Appeal) correctly considered the date of dispatch of the order, leading to the appeal being time-barred.
4. The Tribunal noted that the order was passed without representation despite a request for adjournment and found discrepancies in the Commissioner (Appeal)'s decision. The Commissioner (Appeal) had not verified the delivery of the order dispatched on 18.4.2013 and its acknowledgment. The Tribunal concluded that merely considering the date of dispatch as the date of communication without verifying the receipt was improper. As a result, the Tribunal restored the appeal, including the stay application and COD, in its original number for further proceedings.