2023 (2) TMI 233 - AT - Service Tax

Maintainability of appeal - time limitation - appeal of the appellant dismissed only on the ground of limitation as the appeal was filed beyond 90 days from the date of receipt of the order - HELD THAT - As regard the limitation the learned Counsel has emphatically submitted that the order was not served in terms of Section 37C and he also placed heavy reliance on the Supreme Court judgment in the case of SARAL WIRE CRAFT PVT. LTD. VERSUS COMMISSIONER CUSTOMS, CENTRAL EXCISE AND SERVICE TAX OTHERS 2015 (7) TMI 894 - SUPREME COURT - It is found that this legal aspect has not been examined properly by the learned Commissioner (Appeals). Therefore, the learned Commissioner (Appeals) needs to examine regarding the provision of service of order in the light of Apex Court judgment cited by the appellant. The appeal is allowed by way of remand to the Commissioner (Appeals).

Summary

Issues: Appeal against order of Commissioner (Appeals) dismissed on grounds of limitation due to late filing beyond 90 days.

In this case, the appellant challenged the order of the Commissioner (Appeals) which dismissed the appeal solely on the basis of limitation as it was filed beyond the prescribed 90-day period from the date of receipt of the order. The appellant's counsel argued that the order was received by the appellant firm's accountant and not communicated to the firm in a timely manner, thus contending that the service of the order was not in accordance with the law. Citing Section 37C, the appellant's counsel emphasized that the order should have been served to the intended person or their Authorized Agent, which was not the case here. The appellant relied on a Supreme Court judgment, Saral Wire Craft Pvt. Ltd. Vs. Commissioner of Customs, to support the argument that the date of delivery to the accountant cannot be considered as the date of communication. The Tribunal noted that the Commissioner (Appeals) had not properly examined this legal aspect and set aside the order, remanding the matter back to the Commissioner (Appeals) for a fresh consideration regarding the provision of service of the order in light of the Supreme Court judgment cited by the appellant.

Therefore, the Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) for reconsideration of the limitation issue in accordance with the legal provisions and the Supreme Court judgment referenced by the appellant. The impugned order was set aside, emphasizing the need for a proper examination of the service of the order as per Section 37C and the relevant legal principles established by the Supreme Court. The decision highlighted the importance of adhering to procedural requirements, especially concerning the service of orders, and ensuring that appeals are not dismissed solely on technical grounds without a thorough examination of the legal aspects involved.