2018 (6) TMI 879 - AT - Service Tax

Service of notice - Time Limitation - Erection, commissioning and installation - Section 37 C (2) of the Central Excise Act, 1944 - Held that - The Order-in-Original dated 26.12.2011 was despatched by the Department through registered post. The Commissioner (Appeals) has taken the view that the Order has been properly served complying with the provisions of Section 37C - The appellant has not brought to our notice by means of any coherent evidence that the Order was never served upon him prior to 07.01.2013. The appellant has not bothered to appear before the original Adjudicating Authority also. In the facts and circumstances of the case, Show Cause Notice was served personally upon the appellant. Appeal dismissed - decided against appellant.

Summary

Issues:
- Challenge to Order-in-Appeal No. 7/2014 dated 24.02.2014
- Dispute regarding service tax for the period 2009-2010
- Appeal filed before Commissioner (Appeals) dismissed on the ground of time bar
- Claim of timely filing of Appeal based on date of receipt of Order-in-Original
- Compliance with provisions of Section 37C of the Central Excise Act, 1944

Analysis:
The judgment in question pertains to a challenge against Order-in-Appeal No. 7/2014 dated 24.02.2014, involving a dispute over service tax for the period 2009-2010. The appellant, engaged in providing services related to erection, commissioning, and installation, contested the dismissal of their appeal before the Commissioner (Appeals) on the grounds of being time-barred. The crux of the issue revolved around the date of receipt of the Order-in-Original dated 26.12.2011, with the appellant claiming it was received on 07.01.2013, thereby justifying the timely filing of the appeal on 05.03.2013.

During the proceedings, the appellant's counsel argued for the appeal to be considered as filed within the stipulated time frame, citing relevant case laws to support their stance. Conversely, the Department's representative emphasized the service of the Order-in-Original through registered post, as per Section 37 C (2) of the Central Excise Act, 1944. The lower authority's decision was based on the presumption of service upon dispatch, supported by legal precedents highlighting the burden on the appellant to rebut such presumption with cogent evidence.

Ultimately, the Tribunal upheld the lower authority's findings, noting the lack of coherent evidence presented by the appellant to substantiate their claim of non-receipt of the order before 07.01.2013. The Tribunal also highlighted the appellant's failure to appear before the original Adjudicating Authority, coupled with the personal service of the Show Cause Notice. Consequently, the Tribunal found no grounds to interfere with the lower authority's decision, leading to the dismissal of the appeal challenging the Order-in-Appeal No. 7/2014 dated 24.02.2014.

In conclusion, the judgment underscores the importance of timely filing appeals within the prescribed period, the legal implications of service through registered post, and the burden of proof on the appellant to contest the presumption of service effectively.