2019 (4) TMI 482 - AT - Service Tax

Condonation of delay in filing appeal - power of Commissioner (Appeals) to condone delay - Time limitation - Cable Operator Service - Held that - There is no denial on part of the appellant about the scrutiny of the records and also about the demand as has been proposed vide the impugned show cause notice though it is an argument that even the show cause notice was not received by the appellant. From Order-in-Original also it is apparent that the order of confirming demand has been announced only due to lack of evidence, as was to be tendered by the appellant. There is no sufficient cause shown by the appellant even for delay in obtaining the copy of the order. On the other hand Department has tendered documentary proof of the service of the order at the place of the appellant, the acknowledgement due thereof and above all, the admission that of on behalf of the appellant that the said order was received by the wife of the appellant - Commissioner (Appeals) is justified while denying the time extension even of 30 days as mentioned in Section 35 (Proviso) of Central Excise Act. There is no infirmity in the order under challenge. Otherwise also, no reasonable or sufficient cause of delay of 6 years is observed - appeal dismissed.

Summary

Issues:
- Dismissal of appeal on the ground of limitation
- Service tax liability for cable operator services
- Failure to receive show cause notice
- Delay in filing appeal
- Commissioner's power to condone delay

Analysis:
The appeal was filed against the dismissal of the appellant's appeal due to limitation. The appellant, a cable operator, received signals from M/s. Rajasthan Telematics Ltd. and was billed for services provided for re-transmission to subscribers in Kota. A show cause notice was issued demanding service tax, which the appellant failed to discharge. The Order-in-Original confirmed the proposal due to lack of evidence presented by the appellant.

The appellant argued that the show cause notice was not served at their address, and they only became aware of the order through a newspaper recovery note in 2012. Despite depositing the service tax amount, the appellant faced further proceedings and was declared un-traceable. The appeal was filed in 2016, citing delay condonation based on the date of actual receipt of the order.

The Department contended that the Commissioner (Appeals) lacked statutory power to condone a delay beyond three months. They highlighted the absence of a valid reason for the six-year delay in filing the appeal, as the appellant acknowledged knowledge of the Order-in-Original in 2012.

The Tribunal found no denial from the appellant regarding the scrutiny of records and the proposed demand. Despite the appellant's argument of not receiving the show cause notice, the lack of contrary evidence rendered the argument unacceptable. The appellant's delay in filing the appeal was deemed unreasonable, with insufficient efforts to enquire about the order.

Citing legal precedents, the Tribunal emphasized the importance of presenting a sufficient cause for delay. The appellant's failure to file the appeal within the prescribed period further weakened their case. The Department provided proof of order service, including acknowledgment by the appellant's wife, leading to the dismissal of the appeal due to the lack of a reasonable cause for the six-year delay.

In conclusion, the Tribunal upheld the Commissioner (Appeals)'s decision, denying the time extension for filing the appeal. The lack of a valid reason for the delay, coupled with the Department's documented proof of order service, led to the dismissal of the appeal. The appellant's reliance on case law was deemed inapplicable to the present circumstances, resulting in the appeal being dismissed.