2021 (2) TMI 156 - AT - Service Tax

Maintainability of appeal - time limitation - time spent before wrong fora to be excluded from limitation period or not? - Business Auxiliary Services - HELD THAT - Admittedly, the appellant has filed the appeal on 19/12/2007 but the same was wrongly filed before the Commissioner of Service Tax which was located in the same building. The factum of receipt of the appeal in the office of Commissioner of Service Tax is admitted in the correspondence between the appellant and the Department. Further, it is found that after filing the appeal, the appellant vide its letter dt. 01/12/2008 and subsequent reminder dt. 12/12/2010 requested the Commissioner(Appeals) for grant of personal hearing. The appellant even filed RTI application to find out the where about of the appeal and came to know that the appeal is lying with the Commissioner of Service Tax. Further it is found that if the appeal was filed wrongly before the Commissioner of Service Tax, then it was the duty of the CST to have sent the same to the Commissioner(Appeals) who was located in the same building but the same was not done by the Department and therefore the time spent in pursuing the appeal before the wrong forum is condonable. Matter remanded back to the learned Commissioner(Appeals) with direction to decide the appeal on merits after complying with the principles of natural justice - Appeal is allowed by way of remand.

Summary

Issues:
1. Time-barred appeal against rejection of refund claim.
2. Proper forum for filing appeal and transfer of appeal to the correct authority.

Analysis:
1. Time-barred appeal against rejection of refund claim:
The appeal was directed against the order rejecting a refund claim as time-barred. The appellant, a telecom service provider, had paid an amount towards service tax under "Business Auxiliary Service" for services provided to a foreign mobile service provider. The adjudicating authority rejected the refund claim, stating that the tax was deposited for telephone services provided by the appellant, taxable under the Finance Act, 1994. It was held that the services were consumed in India, not amounting to export. Additionally, even if admissible, the refund should go to the Consumer Welfare Fund. The Commissioner(Appeals) rejected the appeal as time-barred, leading to the present appeal.

2. Proper forum for filing appeal and transfer of appeal to the correct authority:
The appellant argued that the appeal was filed within time but mistakenly submitted in the office of the Commissioner of Service Tax instead of the Commissioner(Appeals). The appellant contended that the appeal should have been transferred to the correct authority once the error was known. Various legal decisions were cited to support this argument. The appellant maintained that the appeal filed before the Service Tax commissionerate should be considered timely. On the contrary, the respondent argued that the appeal was delayed by over three years and negligence was on the part of the appellant for submitting the appeal memorandum to the wrong office.

In the final judgment, it was noted that the appeal was indeed filed in the wrong forum but within the statutory time limit. The appellant's efforts to rectify the error were acknowledged, including requests for a personal hearing and filing an RTI application. The Tribunal held that the time spent pursuing the appeal before the wrong forum was condonable. Consequently, the impugned order rejecting the appeal as time-barred was set aside, and the matter was remanded to the Commissioner(Appeals) for a decision on the merits after following the principles of natural justice. The appeal was allowed by way of remand.