2019 (1) TMI 374 - AT - Service Tax

Condonation of delay in filing appeal - Non-Communication of Order - absence of any proof of service of either show cause notice or any subsequent notice of personal hearing upon the appellant - Section 37C of Central Excise Act - Held that - The copy of Order-in-Original, apparently and admittedly, was received by the appellant only on 10th August, 2015. That too, it was not the certified copy. But still the Commissioner (Appeals) has held the appeal to be delayed for one year and 20 days. The period of limitation i.e. 60 days condonable by Commissioner (Appeals) for another 30 days has to reckon from 10.08.2015. The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015 - reliance placed in the case of M/s. T. Prabhakara Rao vs. Commissioner, Central Excise, Hyderabad-III 2008 (8) TMI 327 - CESTAT, BANGALORE , wherein it was held that appellant can prove non-receipt of order by filing affidavit and that the same is not rebutted for want of the proof of dispatch by the Revenue for no acknowledgement produced, the Tribunal is empowered to condone the delay. The delay is condoned - the Commissioner (Appeals) has dismissed the appeal in limini on limitation and has not given any findings on the merits of the appellant - matter remanded to Commissioner (Appeals) for adjudication on merits - appeal allowed by way of remand.

Summary

Issues:
1. Appeal against Order of Commissioner (Appeals) on grounds of limitation.
2. Discrepancy in the date of receipt of the Order-in-Original.
3. Non-receipt of show cause notice and subsequent notices by the appellant.
4. Discretion of Commissioner (Appeals) to condone delay in filing appeal.
5. Remand of the matter to Commissioner (Appeals) for adjudication on merits.

Analysis:
1. The appellant contested the Order of Commissioner (Appeals) citing the delay in receiving the Order-in-Original, which led to the appeal being filed within the limitation period. The appellant relied on legal precedents to support the argument that without evidence of the order being served, the delay should be condoned. On the other hand, the Department argued that the delay exceeded the permissible 90 days for condonation. The Tribunal observed the discrepancy in the date of receipt of the order by the appellant and concluded that the Commissioner (Appeals) erred in dismissing the appeal solely on grounds of limitation.

2. The Tribunal noted that the appellant, being a sub-contractor, did not receive the show cause notice as it was sent to an old address. Despite the Department's claim of dispatching the Order-in-Original via registered post, the lack of proof of delivery/service raised doubts. The Tribunal emphasized that mere dispatch without acknowledgment was insufficient, and the appellant's assertion of non-receipt was supported by the absence of a reply or attendance at the hearing.

3. Regarding the discretion of the Commissioner (Appeals) to condone the delay, the Tribunal referred to a case where an affidavit proving non-receipt of the order was considered valid. In this context, the Tribunal decided to condone the delay based on the appellant's affidavit confirming the date of communication of the order. However, since the Commissioner (Appeals) did not address the merits of the appeal, the Tribunal remanded the matter for further adjudication.

4. The Tribunal highlighted the relevance of the date of communication for calculating the appeal period under the Central Excise Act. Given the circumstances of delayed receipt of the Order-in-Original, the Tribunal disagreed with the Commissioner (Appeals)'s decision and allowed the appeal by remanding the case for a review on its merits. The judgment underscores the importance of proper communication and service in legal proceedings to ensure fair adjudication.