2023 (1) TMI 594 - HC - Service Tax

Condonation of delay in filing appeal - Proper service of order - appeal has been dismissed on grounds of limitation as being beyond the statutory limit of 60 days prescribed under Section 85 of the Finance Act, 1994 and also beyond the condonable period of 30 days under Section 85(3A) of the Finance Act, 1994 - HELD THAT - Under Section 85 of the Finance Act, 1994 the statutory limit of 60 days is prescribed for preferring an appeal. The delay if any is condonable up to 30 days beyond the period of 60 days under Section 85(3A) of the Act. Two facts emerge from the pleadings on records which cannot be ignored first that the certified copy of the impugned order was provided to the appellant on 19th December 2020 by the Adjudication Branch of Central Goods Services Tax and Central Excise, Ranchi which means that by that time the relaxation of limitation period as per the directions of the Apex Court in IN RE COGNIZANCE FOR EXTENSION OF LIMITATION 2020 (5) TMI 418 - SC ORDER had commenced due to the COVID lockdown. The other fact which emerges from the information obtained under RTI vide Annexure 11 from the office of the Principal Commissioner, Central Goods Services Tax and Central Excise, Ranchi dated 24th January 2022 is that the booking journal or the track consignment report of the speed post does not contain the complete address of the petitioner. The presumption of proof of service of notice is a rebuttable piece of evidence and the track consignment report having an incomplete address of the petitioner valid service of notice of the order in original cannot be presumed. Section 27 of the General Clauses Act as quoted at paragraph 6 of the impugned appellate order also provides that service shall be deemed to be effected by properly addressing, prepaying and posting it be registered post. Petitioner s have therefore rightly contended that it could not have approached the appellate authority earlier. The grounds of rejection of the memo of appeal are not tenable on facts - matter is remanded to the appellate authority to consider afresh in accordance with law - Petition allowed.

Summary

Issues:
1. Challenge to garnishee notice freezing bank account under Central Goods & Services Tax Act, 2017.
2. Dismissal of appeal on grounds of limitation under Section 85 of the Finance Act, 1994.
3. Challenge to appellate order based on non-service of original order and address discrepancies.

Analysis:
1. The writ petitioners challenged a garnishee notice freezing their bank account under the Central Goods & Services Tax Act, 2017. The petition was disposed of as the petitioners had approached the appellate authority against the original order, and the garnishee notice was issued during the pendency of the appeal. The petitioners were granted liberty to move the authority for recall of the notice and for expeditious disposal of the appeal.

2. The appeal was dismissed on the grounds of being time-barred under Section 85 of the Finance Act, 1994, beyond the statutory limit of 60 days and the condonable period of 30 days. The petitioners challenged the appellate order, citing non-service of the original order and discrepancies in the address provided. They argued that the order was not served correctly, affecting their right to appeal within the stipulated time frame.

3. The respondents argued that the order was dispatched and delivered within the required time frame, rejecting the petitioners' plea for relaxation of limitation due to COVID lockdown. The appellate authority upheld the dismissal based on limitation and non-appearance of the petitioners before the adjudicating officer. However, discrepancies in the address provided and the incomplete address on the consignment report raised doubts on the proper service of the notice.

4. The High Court considered the submissions and relevant materials. It noted the discrepancies in the address details and the timing of the order delivery. The Court found that the grounds for rejecting the appeal were not tenable based on the facts presented. Therefore, the appellate order was set aside, and the matter was remanded for fresh consideration in accordance with the law. The writ petition was allowed without delving into the merits of the tax, penalty, and interest imposition.