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2018 (1) TMI 220 - HC - Service TaxCondonation of delay in filing appeal - service of appellate order - Held that - the certified copy of the appellate order dated 08.05.2013 has not been served, either on the assessee or the authorised representative, as the case may be, in the manner as contemplated under Section 37C(1)(a) of Central Excise Act, 1944 made applicable to Service Tax, as per Section 83 of Finance Act, 1994 - Computation of time for filing an appeal starts from the date of service of certified copy of the order. In the instant case on hand, certified copy has not been served, in the manner as stated. Hence, there is no delay in filing the appeal - appeal allowed.
Issues Involved:
1. Demand of Service Tax and penalties. 2. Service of the appellate order. 3. Condonation of delay in filing the appeal. 4. Substantial questions of law regarding service of the order. Detailed Analysis: 1. Demand of Service Tax and Penalties: The order-in-original dated 15.11.2011 confirmed the demand of Service Tax amounting to ?24,51,435/- from M/s. RU's Marketing and Creative Unit, Coimbatore, under Section 73(2) of the Finance Act, 1994 read with the proviso to Section 73(1). Additionally, the order demanded appropriate interest under Section 75 and imposed a penalty of ?24,51,435/- under Section 78 of the Finance Act, 1994. 2. Service of the Appellate Order: The assessee contended that they did not receive the certified copy of the appellate order dated 08.05.2013 by the Commissioner (Appeals), Coimbatore. They claimed to have received only a photocopy of the order on 22.09.2016, served by hand delivery in Mumbai. The department, however, asserted that the order was sent by speed post, which was returned undelivered. The High Court examined whether the service was compliant with Section 37C of the Central Excise Act, 1944, which mandates service by registered post with acknowledgment due or other prescribed methods. 3. Condonation of Delay in Filing the Appeal: The assessee filed an appeal before CESTAT, Madras, along with a condonation application citing non-receipt of the certified order. CESTAT dismissed the condonation petition, stating that the service was appropriately attempted and the delay was not satisfactorily explained. The High Court reviewed this decision, emphasizing the importance of proper service under Section 37C and the implications of non-compliance. 4. Substantial Questions of Law Regarding Service of the Order: The High Court addressed the following substantial questions of law: - Whether the Tribunal was justified in holding that the appellant did not furnish the present address to the Commissioner (Appeals). - Whether the Tribunal was justified in holding that the appellate order was served duly and appropriately under law. The Court underscored that the reason for delay has primacy over the length of delay and examined if the order was served as per Section 37C(1) of the Central Excise Act, 1944. The Court cited several precedents emphasizing the necessity of proper service for the computation of the appeal period. Conclusion: The High Court concluded that the certified copy of the appellate order was not served in compliance with Section 37C(1)(a). Consequently, the dismissal of the delay condonation petition by CESTAT was set aside. The Court held that the computation of time for filing an appeal starts from the date of service of the certified copy. Since the certified copy was not served, there was no delay in filing the appeal. The order of CESTAT was set aside, and the Tribunal was directed to hear the appeal on merits. Final Judgment: The Civil Miscellaneous Appeal was allowed, the substantial questions of law were answered in favor of the assessee, and the case was remanded to CESTAT, Madras, for a fresh hearing. No costs were awarded, and the connected Civil Miscellaneous Petitions were closed.
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