2018 (11) TMI 22 - AT - Service Tax

Condonation of delay in filing appeal - delay in filing of an appeal before commissioner (appeal) - proof of deliver of an order in original - Held that - Sub-clause (a) thereof makes it clear that the service of the order by the registered post with acknowledgement due to the person for whom it is intended or his authorised agent is the sufficient service. From the order under challenge, it is apparent that there is a document of dispatch of the order i.e. vide dispatch No.2200 dated 3rd March, 2010 - the compliance of Rule (a) Section 37 C of CEA stands fulfilled. There was no need to the Department to adopt any other mode as prescribed under various other Sections. Condonation of delay in filing appeal - Section 85 sub-clause (3) of the Finance Act - Held that - As per Section 85 sub-clause (3) of the Finance Act, the appeal before Commissioner (Appeals) could have been filed within 60 days of such receipt of the order under challenge. The proviso to said Section empowers the Commissioner to condone the delay of subsequent 30 days. The Section makes it clear that the legislature has fixed a statutory limit for the purpose of any appeal to be filed before Commissioner (Appeals) - Commissioner (Appeals) has no discretion to condone the delay beyond 60 30 i.e. 90 days of the service of the order under challenge - delay cannot be condoned. There are no reasonable cause in the contention of the appellant - Moreover the Commissioner had no power to condone the delay of more than 3 years - appeal dismissed.

Summary

Issues:
Appeal against dismissal on the point of limitation.
Interpretation of Section 37 C of the Central Excise Act, 1944.
Validity of service of the order.
Applicability of case laws in the current scenario.
Discretion of Commissioner (Appeals) to condone delay.

Analysis:
The appeal was filed against the dismissal of the case on the grounds of limitation. The appellant, a service provider, was alleged to have not discharged tax liability, leading to a show cause notice and subsequent confirmation of demand. The appeal was dismissed by the Commissioner (Appeals) due to a delay of 3 years and 2 months in filing. The appellant contended that the order was not received, citing Section 37 C of the Central Excise Act, 1944, which specifies the procedure for service. The appellant argued that the order was never received, as evidenced by their communications with the Department.

During the hearing, the appellant relied on various case laws to support their argument for setting aside the order. However, the Department argued that the order was dispatched and received back with remarks, indicating sufficient service. The Department emphasized that the appellant's arguments were not acceptable, citing a relevant case law. The Tribunal deliberated on whether the order was received by the appellant, as mandated by Section 37 C of the CEA, which specifies the service of decisions and orders.

The Tribunal found that there was a document of dispatch of the order, fulfilling the requirements of Section 37 C. Despite the appellant's claim of not receiving the order, the record showed a clear finding by the Commissioner (Appeals) that the order was served but refused by the appellant. The Tribunal also highlighted the statutory limit for filing an appeal before the Commissioner (Appeals) and the Commissioner's lack of discretion to condone delays beyond the specified period.

The Tribunal concluded that the order had been served upon the appellant, and the Commissioner (Appeals) had no authority to condone the delay of more than 3 years. The Tribunal dismissed the appeal, stating that the appellant's contentions lacked reasonable cause and that the order had no infirmity. The case laws cited by the appellant were deemed inapplicable to the current circumstances, given the evidence of dispatch and refusal of service by the appellant.