2022 (6) TMI 100 - AT - Service Tax

Maintainability of appeal - appeal dismissed on the ground of time limitation - HELD THAT - The learned Commissioner (Appeals) have erred in drawing the presumption of service only on the basis of despatch of order-in-original by speed post. The law does not provide for any presumption, and proof of delivery needs to be brought on record. In these circumstances, it is found that the impugned order is fit to be set aside. Further, it is found that the order-in-original was passed ex-parte as the Range Superintendent passed the order ignoring the written representation filed by the appellant. Accordingly, this appeal is allowed by way of remand to the Range Superintendent, with the direction to hear the appellant and pass a reasoned order in accordance with law. Appeal allowed by way of remand.

Summary

Issues Involved:
- Appeal dismissal on the ground of limitation

Analysis:
The appeal before the Appellate Tribunal CESTAT New Delhi revolved around the dismissal of the appeal on the grounds of limitation by the learned Commissioner (Appeals). The appellant, engaged in construction activities, received a show cause notice in 2014, but the subsequent ex-parte order imposing a penalty was not served upon them. The appellant only became aware of the order in 2020 when a recovery notice was received. Despite filing the appeal within the limitation period from the date of service of the order-in-original, the appeal was dismissed by the Commissioner (Appeals) based on the assumption that the appeal should have been filed within sixty days from the date of despatch of the order-in-original in 2015.

The appellant argued that the order-in-original was never served upon them, and there was no proof of delivery provided by the Revenue. They contended that the law requires either personal service or sending by registered/speed post with acknowledgment due. Citing a previous Tribunal ruling, the appellant emphasized that there is no presumption of service without proof of delivery for despatch by speed post or registered post. On the other hand, the Revenue relied on the impugned order.

Upon considering the arguments, the Member (Judicial) found that the Commissioner (Appeals) erred in presuming service based solely on the despatch of the order-in-original by speed post. Highlighting the lack of provision for presumption in the law, the Member emphasized the necessity of proof of delivery. Consequently, the impugned order was set aside. Additionally, it was noted that the original order was passed ex-parte, disregarding the appellant's written representation. As a result, the appeal was allowed by way of remand to the Range Superintendent, directing a proper hearing and a reasoned order in accordance with the law.

In conclusion, the appeal was allowed by way of remand, with the Member (Judicial) setting aside the erroneous presumption of service and emphasizing the importance of proof of delivery in such cases.