2023 (12) TMI 605 - AT - Service Tax

Delay in filing of appeal or not - service of the order - time limitation - appeal rejected on the ground of being filed much after a period of 60 30 days from the date of receipt of the Order-in-Original - Recovery of service tax alongwith interest - HELD THAT - The Order-in-Original dated 28.07.2020 was served upon the appellant by two different modes one by speed post which apparently has not returned back undelivered ; two that the order was delivered to one of the employee of appellant namely Shri Prateek Rao. He admittedly is the employee of appellant as service supervisor. It is opined that issuance of copy of order by speed post does not amount to service thereof as such because it will be mere dispatch of the order - No doubt in section 37C, speed post is the mode of service but proof of dispatch is still mandatory. In the absence of proof of receipt of the O-I-O to the appellant sent by speed post, the same cannot be held to have been served. Shri Prateek Rao, who admittedly received the order is an employee of the appellant in their workshop. In addition, ld. CA has placed on record an affidavit of Shri Prateek Rao, wherein he deposed that he received notice but he failed to bring it to the notice of the appellant. The contents of said affidavit are fully corroborated by partner of the appellant, Shri Abbas Ali Ghasswala - It gets clear from the affidavits that the Order-in-Original could never be brought to the notice of the appellant. It is only from the recovery notice dated 23.02.2023, the appellant acquired knowledge about the Order-in-Original dated 28.07.2020. On the very next day, appellant applied for the copy of the said order and not in later than 10 days of getting the copy of the impugned order, appeal has been filed. The present appeal shall not be thrown at the threshold and shall be decided on the merits of the case - this is a fit case to be remanded to the Commissioner (Appeals) with the direction to decide the appeal on merits of the case after giving reasonable opportunity of hearing to the appellant - appeal is allowed by way of remand.

Summary

Issues involved:
The appeal against rejection on the ground of limitation.

Summary:

Issue 1: Rejection of appeal on the ground of limitation

The appellant provided various services but failed to declare and discharge service tax towards income from commissions and other taxable heads. The appeal against the Order-in-Original was rejected due to being filed much after the prescribed period of 60 + 30 days. The appellant contended that the appeal was filed within the limitation period as they only received the Order-in-Original through a recovery notice. The appellant argued that the major period after the Order-in-Original was during the COVID pandemic, which the Supreme Court had directed to exclude from the calculation of the limitation period. The appellant also raised concerns about the service of notice not being in compliance with the Central Excise Act. The Departmental Representative argued that the notice was duly served on the appellant's employee, and the order was received by the employee. The Tribunal observed that the Order-in-Original was served through two modes, one being speed post and the other being delivery to an employee of the appellant. However, the Tribunal found that there was no proof of receipt of the Order-in-Original by the appellant through speed post. The employee who received the order failed to bring it to the appellant's notice. Therefore, the Tribunal remanded the case to the Commissioner (Appeals) to decide the appeal on its merits after providing a reasonable opportunity of hearing to the appellant within four months.