2020 (4) TMI 41 - AT - Service Tax

Maintainability of appeal - time limitation - Proof of service of order - objection that, appeal is filed beyond the prescribed time limit in terms of Section 85(3A) of the Finance Act, 1994 - HELD THAT - As per Section 37C of the Act of the Central Excise Act, 1994, the service is complete by speed post by proof of delivery. Admittedly, there is a presumption that if order has not been returned back, it has been delivered/ served but there is no clear cut proof of delivery of the adjudication order on the appellant. Therefore, benefit of doubt goes in favour of the appellant and by non filing of appeal within time, the appellant has not gained anything. As Revenue has failed to produce the proof of delivery of the adjudication order on the appellant, it is held that the appellant have received the impugned order only on 15.01.2019 and filed the appeal on 21.02.2019 before the learned Commissioner (Appeals) is within time. Matter remanded back to the learned Commissioner (Appeals) to decide the issue on merits - appeal allowed by way of remand.

Summary

Issues: Appeal against dismissal of appeal as time-barred under Section 85(3A) of the Finance Act, 1994.

In this case, the appellant filed an appeal against an order dismissing their appeal as time-barred under Section 85(3A) of the Finance Act, 1994. The adjudication order was dispatched via speed post on 27.04.2018, and the appellant claimed to have received it on 15.01.2019. The Commissioner (Appeals) presumed the order was delivered based on non-return of the speed post. However, the Tribunal noted that there was no clear proof of delivery to the appellant, and the benefit of doubt should favor the appellant. The Tribunal referred to Section 37C of the Central Excise Act, 1994, which states that service is complete by speed post with proof of delivery. Since there was no conclusive evidence of delivery, the Tribunal held that the appeal filed on 21.02.2019 was within time. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a decision on the merits. The appeal was disposed of by way of remand, with the judgment pronounced on 05.03.2020.