2018 (8) TMI 251 - AT - Service Tax

Condonation of delay in filing appeal - sufficient explanation for delay not provided - Service of notice - the appellant denied receiving even the Show Cause Notice dated 20.11.2006 - GTA Service - non-payment of Service tax - Held that - No doubt, the serving of notice vide original post is not the prescribed mode of service in view of Section 37C of CEA but the apparent fact remains is that the Order under challenge has been in furtherance of the Appeal of assesse itself who has been appearing throughout proceedings. He even marked his personal presence before the Commissioner(Appeals) on 25.02.2014 where after the matter was reserved for Orders. There is nothing on record by the appellant to explain as to why he has failed to inquire about the outcome of his proceedings till October 2014, i.e. for subsequent 10 months thereof. There is no explanation to this delay of 15 days. Law of limitation is absolutely settled that delay even of single day has to be explained - the applicant is held to have not observed the due diligence. Even after receiving the recovery notice, he failed to be prompt. Above all, as per Section 85 of Finance Act, Commissioner (Appeals) had no discretion to condone the delay beyond a period of 3 months. There is no apparent cause and no reasonable explanation by the appellant for the observed delay rather his conduct is observed as inaction and lack of due diligence since the stage of SCN itself - appeal dismissed - decided against appellant.

Summary

Issues:
1. Appeal dismissed on the ground of limitation.
2. Failure to consider the date of communication of the Order-in-Appeal.
3. Service of notice via original post.
4. Lack of due diligence by the appellant.
5. Applicability of legal precedents in the case.

Analysis:
1. The appellant's appeal was dismissed by the Commissioner (Appeals) on the ground of limitation, as per Section 85 of the Finance Act, 1994, requiring the appeal to be filed within 3 months from the date of receipt of the decision or order. The appellant argued that the order was received after the prescribed time, but the Commissioner (Appeals) was bound by the mandatory provision and rejected the appeal as time-barred.

2. The appellant contended that the Commissioner (Appeals) failed to consider the date of communication of the Order-in-Appeal, which was crucial in determining the timeliness of the appeal. The appellant argued that the order was made available to them only after a specific request, and thus, the appeal should not have been considered time-barred. However, the respondent maintained that the order was duly served on the appellant, and the appeal was rightly rejected on the grounds of limitation.

3. Although the service of notice via original post was not the prescribed mode of service under Section 37C of the Central Excise Act, the Tribunal noted that the appellant had been actively participating in the proceedings, including appearing before the Commissioner (Appeals). The appellant's failure to inquire about the outcome of the proceedings for a significant period after marking their presence raised questions about due diligence and promptness.

4. The Tribunal observed that the appellant demonstrated a lack of due diligence throughout the proceedings, including delays in seeking a copy of the order and responding to notices. The appellant's conduct, as highlighted in the Order-in-Original, indicated a pattern of inaction and lack of diligence, which contributed to the dismissal of the appeal on the grounds of limitation.

5. Legal precedents cited by the appellant, such as the decision in Hindustan Lever Ltd. vs. CCE, Chennai 2006 (194) ELT 352, were found inapplicable due to the specific conduct and circumstances of the present case. The Tribunal emphasized the importance of adhering to statutory timelines and the expectation of parties to present accurate information before the court, as established by the Hon'ble Supreme Court in various judgments.

In conclusion, the Tribunal upheld the dismissal of the appeal, citing the lack of due diligence, failure to meet statutory timelines, and the appellant's conduct throughout the proceedings as reasons for rejecting the appeal. The judgment emphasized the importance of timely compliance with legal requirements and the consequences of failing to demonstrate diligence in legal matters.