2023 (11) TMI 258 - AT - Service Tax

Maintainability of appeal - time limitation - appeal dismissed solely for the reason that it was filed beyond the period prescribed in section 85(3A) of the Finance Act, 1994 - HELD THAT - Under section 85(3A) of the Finance Act, an appeal has to be presented within two months from the date of receipt of the decision, but the Commissioner (Appeals), if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. In the present case, the appellant has claimed that the order was received from 06.10.2020 when the appellant contacted to the department after the appellant received a recovery order dated 24.09.2020 from the State Bank of India. The appeal was therefore filed within a period of two months from the date of receipt of the decision. The impugned order dated 25.02.2021 passed by the Commissioner (Appeals), therefore, deserves to be set aside and is set aside. The Commissioner (Appeals) shall now decide the appeal on merits - appeal allowed.

Issues involved: Appeal dismissed for being filed beyond prescribed period under section 85(3A) of the Finance Act, 1994.

The judgment addresses the issue of the dismissal of an appeal by the Commissioner (Appeals) due to it being filed beyond the prescribed period under section 85(3A) of the Finance Act, 1994. The appellant contended that the appeal was actually received within the stipulated time, and the order was deemed to have been served incorrectly by the Commissioner (Appeals) as it was sent by speed post, not registered post.

The Commissioner (Appeals) dismissed the appeal solely on the grounds of being filed beyond the prescribed period under section 85(3A) of the Finance Act, 1994. The appellant argued that the order was actually received within the stipulated time, and the method of service was incorrectly deemed by the Commissioner (Appeals) as registered post instead of speed post.

The Commissioner (Appeals) noted the delay in filing the appeal and based the dismissal on the grounds of the appeal being beyond the prescribed period under section 85(3A) of the Finance Act, 1994. The appellant claimed that the order was actually received within the stipulated time, and the method of service was incorrectly deemed by the Commissioner (Appeals) as registered post instead of speed post.

The Assistant Commissioner confirmed that the order was dispatched by speed post and not returned undelivered. The Commissioner (Appeals) incorrectly deemed the order to have been served by registered post, contrary to the actual method of dispatch by speed post. The appellant argued that the order was received within the stipulated time, as claimed.

The judgment highlighted the discrepancy between the method of service, with the order being dispatched by speed post but deemed served by registered post. The appellant asserted that the order was received within the stipulated time, challenging the Commissioner (Appeals)'s decision to dismiss the appeal based on the incorrect method of service.

The amended section 37C of the Central Excise Act, applicable to service tax matters, outlines the requirements for service of decisions, orders, summons, etc. The Commissioner (Appeals) incorrectly applied the unamended section 37C in this case, leading to a misinterpretation of the method of service of the order.

The judgment emphasized the importance of the correct method of service under the amended section 37C of the Central Excise Act in service tax matters. The appellant's argument that the order was received within the stipulated time was supported by the confirmation that the order was dispatched by speed post.

The Commissioner (Appeals) was directed to set aside the impugned order and decide the appeal on its merits. The appellant's claim that the order was received within the stipulated time was upheld, leading to the allowance of the appeal.

← Previous Next →