2018 (4) TMI 975 - HC - Service Tax

Pre-deposit - appeal dismissed as time barred - Held that - the petitioner effected the predeposit on 01.7.2016, which is admittedly within the period of 30 days from the date, on which, the petitioner received the copy of the Order in Original. That apart, the appeal was filed on 06.7.2016 before the wrong forum - The stand taken by the petitioner stood vindicated after the office of the Commissioner of Central Excise and Service Tax (Appeals), Large Tax Payers Unit realized that the appeal has been presented before the wrong forum and hence, forwarded the same to the respondent. Thus, for all practical purposes, the date of filing should be taken as 06.7.2016. If the same is reckoned, the appeal is well within the period of limitation. The matter is remanded to the respondent to decide the appeal on merits - appeal allowed by way of remand.

Summary

Issues:
Challenge to order dismissing appeal as time-barred due to filing in the wrong forum.

Analysis:
The petitioner challenged an order dismissing their appeal as time-barred. The Order in Original was passed on 29.2.2016, received on 06.6.2016, and the appeal period expired on 05.8.2016. The petitioner filed the appeal on 06.7.2016 with a pre-deposit of 10% of the disputed tax. However, the appeal was mistakenly filed in the office of the Commissioner of Central Excise and Service Tax (Appeals) instead of the respondent's office. The correct office received the appeal papers on 03.10.2016. Despite personal hearings and submissions, the appeal was dismissed as time-barred, considering the filing date as 03.10.2016, beyond the condonable period under Section 85 of the Finance Act, 1994.

The petitioner argued that the pre-deposit was made on 01.7.2016, within 30 days of receiving the Order in Original. The appeal was filed on 06.7.2016 in the wrong forum due to inadvertent mistake, within the same building complex as the correct office. The appeal papers were forwarded to the respondent on 03.10.2016, and personal hearings were conducted. The petitioner contended that the filing date should be considered as 06.7.2016, well within the limitation period, given the proximity of the two offices and the mistake rectification process.

The High Court allowed the writ petition, setting aside the impugned order and remanding the matter to the respondent for a decision on the appeal's merits. The court emphasized the inadvertent mistake in filing the appeal before the wrong forum within the same building complex. The petitioner's actions, including pre-deposit and subsequent rectification, were considered in determining the correct filing date. The court directed the respondent to decide the appeal on its merits and in accordance with the law, ensuring a personal hearing for the petitioner.