2019 (11) TMI 21 - HC - Service Tax

Maintainability of appeal - appeal was dismissed on the ground of time bar - HELD THAT - The respondent no.2, vide letter dated 10.05.2019, provided certified copy of the order in original to the petitioner. The petitioner without any delay filed an appeal under Section 35 of the Central Excise Act, 1944 in Form ST-4 before the Commissioner (Appeals-I), CGST, Central Goods Services Tax Commissionerate, Jaipur, on 07.06.2019 - the Commissioner, without going into the merits of the case, dismissed the same on the ground of limitation. No doubt, the appeal filed by the petitioner was time barred but in the facts of the case, the appeal of the petitioner ought to be decided on merits rather dismissing the same on the ground of delay. The delay occurred in filing the appeal is condoned and remit this matter to the Commissioner (Appeals), Central Goods And Service Tax, Jaipur, for its decision on merits - petition allowed by way of remand.

Summary

Issues:
Challenge to order dismissing appeal on grounds of time bar without considering merits.

Analysis:
The writ petition challenges the order of the Commissioner (Appeals) dismissing the appeal on the ground of time bar without delving into the merits of the case. The petitioner, a construction company, holds Service Tax Registration for specific services. The adjudicating authority issued an order creating a substantial demand for service tax, interest, and penalty, but the petitioner was not provided a certified copy of this order initially. It was only after a telephonic call for recovery that the petitioner became aware of the outstanding demand. Upon verification, it was discovered that the petitioner had not received the original order. Subsequently, a request was made for the copy, which was provided after some time. The petitioner promptly filed an appeal upon receiving the certified copy, but it was dismissed solely on the basis of being time-barred.

The petitioner contended that the appeal should have been considered on its merits, especially since an application for condonation of delay was submitted, detailing the reasons for the delay. The respondent argued that the order was sent by post, and a report from the postal department confirmed delivery to the addressee. However, the petitioner's Director stated in an affidavit that she had no knowledge of the order until the recovery proceedings were initiated. The petitioner's representation to the authorities reiterated the non-receipt of the original order. Despite the appeal being time-barred, the court opined that in the circumstances presented, the appeal should have been decided on its merits rather than summarily dismissed due to delay.

Consequently, the court decided to condone the delay in filing the appeal and remitted the matter back to the Commissioner (Appeals) for a decision on the merits. The parties were directed to appear before the Commissioner for further proceedings. The court disposed of the writ petition accordingly, which also resolved the stay application.