2019 (1) TMI 1238 - AT - Service Tax

Maintainability of appeal - appeal was dismissed on the ground of time bar holding that the appeal before the Commissioner was filed beyond prescribed period - non-service of order-in-original - Held that - In the impugned order, the Ld. Commissioner (A) has not considered at all the submissions made by the appellant in their application seeking Condonation of Delay in filing the appeal before him - Further, when the appellant s accounts were freezed on the basis of Order-in-Original then they came to know about the said order and thereafter, they moved an application for obtaining the order which is alleged to have been served on them on 30.01.2017 but there is no proof of the said service - Further, even the adjudication order was passed without giving sufficient opportunity to the appellant to put up their defence. Matter remanded to the Commissioner (A) to decide the appeal on merits - appeal allowed by way of remand.

Issues involved:
1. Appeal against rejection of appeal as time-barred without considering merits.
2. Appellant's contention of delay in filing appeal and grounds for seeking Condonation of Delay.
3. Department's defense of appeal being time-barred.
4. Lack of consideration of submissions by Commissioner (A) in the impugned order.
5. Appellant's claim of not receiving the impugned order and lack of proof of service.
6. Passing of adjudication order without providing sufficient opportunity for defense.

Issue 1: The appeal was directed against the rejection of the appellant's appeal as time-barred without delving into the merits of the case. The appellant, a local authority, had leased out properties and collected rent, with the rental income always below ten lakhs, thus not paying Service Tax or obtaining registration under the Finance Act. The Department issued a show cause notice proposing Service Tax demand and penalties, leading to the appellant filing an appeal before the Commissioner (A), which was rejected as time-barred by the Commissioner (A).

Issue 2: The appellant argued that the impugned order was unsustainable as it did not consider the facts and law properly. The appellant sought Condonation of Delay due to not receiving the Order-in-Original, frequent transfer of chief officers, and lack of intention to miss the appeal deadline. The appellant claimed the impugned order was known only after a bank account freeze notice, with no proof of service of the order on 30.01.2017. The appellant also highlighted the lack of proper opportunity to present their case during the adjudication process.

Issue 3: The Department defended the time-barred appeal, stating it was rightly dismissed by the Commissioner (A) due to being filed beyond the prescribed period.

Issue 4: The Tribunal noted that the Commissioner (A) did not consider the appellant's submissions in the Condonation of Delay application, where the appellant stated not receiving the impugned order and the frequent transfer of chief officers. The Tribunal found that the impugned order's reliance on a letter not provided to the appellant was incorrect.

Issue 5: The Tribunal found that the appellant's claims of not receiving the impugned order and lack of proof of service raised doubts about the validity of the time bar decision. The Tribunal also noted the lack of sufficient opportunity for the appellant to present their defense during the adjudication process.

The Tribunal concluded that the impugned order dismissing the appeal as time-barred was not sustainable in law. The Tribunal set aside the order and allowed the appeal by remanding it to the Commissioner (A) to decide on the merits. The appeal was allowed by way of remand, emphasizing the importance of considering all submissions and providing adequate opportunities for defense.

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