2024 (2) TMI 617 - AT - Service Tax

Refund claim - time limitation - date of service of the order - determination of delay - appeal filed belatedly beyond the prescribed period of 60 days in terms of Section 85(3A) of Finance Act, 1994 or not - HELD THAT - There is no specific date mentioned either in the face of the order or the date of the order in the preamble. Further, there is no evidence on record before me to state that the appellant had received the original order in time and there was delay in filing the appeal beyond the prescribed 60 days time. In the absence of any evidence or documents produced by the Department for dispatch of the original order and its receipt by the appellant; or by any independent evidence, such as records of the postal authorities to support the same, the stand taken in the impugned order cannot be accepted that the original order was sent in time and the delay in filing appeal is on account of the appellant. By taking note of the claim of the appellant that the said original order was received on 26.11.2018, it is found that the appeal before the Commissioner (Appeals) had been filed on 23.01.2019 i.e. within 57 days. Thus, appeal filed by the appellant is eligible to be considered under Section 85(3A) of the Finance Act, 1994. The appeal is allowed by of remand to the Commissioner (Appeals) for fresh decision on merits.

Summary

Issues involved: Determination of time limit for filing an appeal under Section 85(3A) of Finance Act, 1994 based on the receipt of the original order by the appellant.

Summary:

Issue 1: Time limit for filing appeal

The dispute revolved around the time limit for filing an appeal under Section 85(3A) of the Finance Act, 1994. The appellant claimed to have received the Order-in-Original after the prescribed period of 60 days, while the impugned order held the appeal as belatedly filed. The impugned order dated 30.09.2019 rejected two refund claims filed by the appellant, citing delay in filing the appeal beyond the prescribed period. The appellant contended that the original order was received on 23.01.2019, within 57 days of its receipt, and thus, the appeal was filed within the stipulated time frame.

Issue 2: Lack of evidence on dispatch and receipt

During the proceedings, the Department failed to produce any evidence regarding the dispatch or receipt of the original order by the appellant. The Order-in-Original signed by the Deputy Commissioner did not mention the date of issue or dispatch, leading to a presumption that it was dispatched after being signed on 28.02.2018. The appellant's current address matched the one mentioned in the original order, eliminating the possibility of a mistaken address. Additionally, there was no indication in the office copy of the Order-in-Original or any other records to prove dispatch and receipt, attributing the delay in filing the appeal to the appellant's failure.

Issue 3: Legal precedent and decision

The appellant relied on the judgment of the Hon'ble High Court of Madras in a similar case to support their claim that the delay in receipt should be condoned in the absence of concrete evidence. The Tribunal, considering the absence of specific dates in the order and the lack of evidence regarding receipt, accepted the appellant's claim that the original order was received on 26.11.2018. Consequently, as the appeal was filed on 23.01.2019, within 57 days of the alleged receipt, it was deemed eligible for consideration under Section 85(3A) of the Finance Act, 1994.

Conclusion:

In light of the discussions, the Tribunal set aside the impugned order dated 30.09.2019 and allowed the appeal, remanding the case to the Commissioner (Appeals) for a fresh decision on the merits.

*(Order pronounced and dictated in open court)*