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2022 (5) TMI 567 - AT - Service TaxCondonation of delay in filing appeal before Commissioner (appeals) - appeal rejected on the ground of time limitation - appeal was filed with a delay of more than 10 months from the expiry of stipulated period of two months for filing the appeal - Section 85 (3) of Finance Act 1994 - HELD THAT - The bare perusal of the provisions makes it clear that the period of limitation of two months as is stipulated therein, has to reckon from the date of receipt of the decision of the Adjudicating Authority against which the appeal has been filed - In the present case the date of receipt of the Order-in-Original is mentioned by the appellant as 03.06.2020. There is no denial for the said fact except the mention that earlier notices including the service of show cause notice and the service of Order-in-Original were made on the same address as that of the notice which was received by the appellant on 3.6.2020. However, it is perused that no document is produced on record by the department to prove the service of said earlier notices and even of the SCN. It is also apparent that O-I-O has been passed exparte. There have been catena of decisions which mandate that it is not the issuance of notice but the service there of which is relevant for holding the same as the evidence of the services of the notice. The said document is miserably missing. The only document produced by the Department is the service report of the letter dated 24.07.2020 vide which the Order-in-Original dated 26.04.2019 was served upon the appellant. In fact this date has to be considered as the relevant date for the purpose of Section 85 - However, in the present case as per appellant s own submission of date of knowledge of the Order-in-Original is mentioned as 03.06.2020. Hence the same is the relevant date for the period of two months in Section 85 (3) of the Act to reckon. The appeal before the Commissioner (Appeals) was filed on 31.08.2020. It becomes clear that appeal has been filed within the stipulated period of two months from the date when the fact of passing of the Order-in-Original came to the notice of the appellant on 03.06.2020. The relevant date in terms of Section 85 of the Finance Act, the date of receipt of the order of the adjudicating authority. As per Department s own document the said date is 24.07. 2020. Hence the appeal filed on 31.08.2020 was very much within the period of two months stipulated under section 85 (3) of the Finance Act 1994 for the purpose of filing the said appeal. Accordingly, it is held that findings in para 6.2 of the order under challenge are not sustainable. However the order of Commissioner (A) was merely on the technical grounds. The order on merits is yet to be passed. The matter is therefore, remanded back to Commissioner (Appeals) for adjudicating the matter on merits of the case - appeal allowed by way of remand.
Issues:
1. Appeal against rejection based on limitation grounds. Analysis: The appeal was filed to challenge the rejection based on limitation by the Commissioner (Appeals) in Order-in-Appeal No231/2021. The appellant, a service provider in the goods transport agency sector, was alleged to have not paid service tax amounting to Rs.6,78,875/- on a taxable value of Rs.54,92,516/- for the Financial Year 2012-13. The proposal for recovery, along with interest and penalties, was confirmed vide Order-in-Original No. 2261-64 dated 26.04.2019, announced ex-parte. The appeal against this order was filed on 31.08.2020, beyond the stipulated period of two months for filing an appeal. The main issue in the case was whether the appeal filed before the Commissioner (Appeals) was within the period of limitation as prescribed under Section 85 (3) of the Finance Act 1994. The provision states that an appeal must be presented within two months from the date of receipt of the decision or order of the adjudicating authority. The appellant claimed to have received communication about the Order-in-Original on 03.06.2020, and the appeal was filed on 31.08.2020, within the two-month period from the date of knowledge of the order. The Tribunal observed that the relevant date for the period of two months to reckon was the date when the appellant had knowledge of the Order-in-Original, which was 03.06.2020. The appeal was filed within the stipulated period of two months from this date. The Department's document indicated the date of receipt of the order as 24.07.2020. Therefore, the appeal filed on 31.08.2020 was within the prescribed period. The Tribunal held that the findings on limitation in the order under challenge were not sustainable. The matter was remanded back to the Commissioner (Appeals) for adjudication on the merits of the case. The order under challenge was set aside, and the appeal was allowed by way of remand for further proceedings on the merits of the case.
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