2019 (3) TMI 111 - AT - Service Tax

Condonation of delay in filing appeal - time limitation - relevant time for communication/service of order - appeal dismissed on the ground of limitation as the appeal was preferred beyond 7 years - entire case of the appellant rests on a ground that the change of address of the appellant was communicated by the appellant to the Department on 15.11.2010 by way of updating the same in Form ST-1. Despite that the Order-in-Original dated 27.01.2011 was been sent by the Department to the old address itself - Short payment of service tax. Held that - There was no occasion with the appellant to be aware about the said Order-in Original. It is impressed upon that it is only after the recovery proceedings initiated that the Order-in-Original came to the notice of the appellant and the appeal was preferred before Commissioner (Appeals). It is apparent from grounds of appeal as well as from the application of appellant before Commissioner (Appeals) praying for rectification of mistake. The show cause notice is of October, 2007 and was served on the previous address. There is no denial on the part of the appellant that the show cause notice was received by the appellant - the foremost argument of the appellant about ignorance of the adjudication of the said show cause notice is not at all acceptable. It is clear beyond doubts that the appellant has been highly negligent about the status of investigation based whereupon the impugned SCN was issued. Rather appellant has nowhere denied receiving the show cause notice. Even presuming that even SCN was not received by the appellant, still there is no reasonable explanation as to why the address which got changed in the year 2007 was not brought to the notice of department till the year 2010 that too only by way of ST-1 Return. The otherwise apparent fact is that the impugned order was dispatched to the appellant through the valid mode, as provided in law, and the same has never been returned to the Department - the Commissioner (Appeals) was statutorily bound to not to condone the delay beyond 90 days. There is opined no infirmity in the order under challenge. Delay of seven years is denied to be condoned - application dismissed.

Summary

Issues:
1. Appeal against dismissal on the ground of limitation.
2. Change of address notification and its impact on the case.
3. Compliance with statutory provisions regarding change of address.
4. Delay in filing appeal and condonation of delay.
5. Negligence and mala fide intentions in the case.
6. Statutory limitations on condonation of delay.

Analysis:

1. The appellant filed an appeal against the dismissal of their appeal on the ground of limitation. The original order was issued in response to a show cause notice for a short payment of service tax. The appeal was dismissed as it was filed beyond the prescribed 7-year period.

2. The appellant argued that despite notifying the department of a change in address, the original order was sent to the old address, resulting in the appellant being unaware of the proceedings until much later. The delay in filing the appeal was attributed to this reason.

3. The department contended that the change of address notification through ST-1 was not sufficient as per Rule 4(5A) of the Service Tax Rules. The appellant failed to comply with the statutory requirement of informing the jurisdictional authority in writing within 30 days of the change.

4. The tribunal observed that the appellant was negligent in not updating the address promptly and that the delay in filing the appeal was unjustified. The delay of 7 years was not condoned, citing statutory limitations and case law precedent.

5. The tribunal noted the appellant's lack of diligence in addressing the show cause notice and the subsequent proceedings. The appellant's claim of ignorance was refuted, and mala fide intentions were suggested due to the prolonged delay in addressing the issue.

6. Citing the case law precedent and statutory provisions, the tribunal dismissed the appeal, emphasizing the importance of adhering to timelines and statutory requirements. The order under challenge was upheld, and the application for condonation of delay was rejected.

In conclusion, the tribunal found no grounds to condone the delay of seven years in filing the appeal, emphasizing the importance of timely compliance with statutory provisions and the consequences of negligence in legal proceedings.