2024 (6) TMI 128 - AT - Service Tax

Timeliness of the appeal filed before the Commissioner (Appeals-II) - condonation of delay - Section 85 (3A) of the Finance Act, 1994 - Refund claim. Timeliness of the appeal filed before the Commissioner (Appeals-II) - whether there is any delay in filing of appeal before the Commissioner (Appeals-II) in terms of the provisions under Section 85 (3A) of the Finance Act, 1994 or not? - HELD THAT - The word Sevottam‟ is a combination of two Hindi words Seva (Service) and Uttam (Excellent). It means Service Excellence , emphasizing the idea of Service . It symbolizes the change in mindset within the Government, from administration and control to service and enablement. The overarching objective of Sevottam is to continuously improve the quality of public service delivery in the country. Sevottam framework was created by the Department of Administrative Reforms and Public Grievances, Government of India in 2005, after study of the best international practices such as the Charter Mark of United Kingdom and the Malcolm model of United States of America. It is a framework for bringing continuous improvements in service delivery by government organizations. Thus, Sevottam is an administrative measure to improve the quality of public services in India. Without finding the factual position about what happened to the appeal papers filed by the appellant before the Sevottam section on 10.02.2017, when there is a specific seal of the office of jurisdictional CGST Commissionerate; and whether the appellant did not file the appeal papers at all originally on 10.02.2017, it is not appropriate to come to the conclusion that the appellant had for the first time filed the appeal before the Commissioner (Appeals-II) by submitting their letter dated 29.04.2019 directly before his office. This is more so when CBIC had prescribed Sevottam public delivery service of receiving all documents, papers, returns, forms etc. by a central section of the office and various Commissionerates have taken up this as standard procedure in their dealing with the trade and public. In fact, this reinforces that the system of individual section or office accepting the documents and giving acknowledgement is not available to the trade and public. It is further found that the learned Commissioner (Appeals) in the impugned order has not examined the merits of the case and disposed of the appeal only on the ground that the appellant failed to submit the appeal memorandum within the prescribed period under Section 85(3A) ibid. From the records of the case, by taking the documents on face value as it is, since these have not been proved otherwise, and without taking into account the affidavits filed by both sides, it is found that if the receipt of appeal memorandum submitted on 10.02.2017 having acknowledgement of seal of the Commissionerate is taken into account, then from the date of receipt of the Order-in- Original by the appellant on 14.12.2016, within two months of the receipt of the original order they had preferred the appeal before the office of the Commissioner (Appeals-II), through the Service Tax Sevottam Cell. The ends of justice would be met if the delay in filing the appeal by the appellant before the Commissioner (Appeals-II) is condoned in the above factual matrix of the case and the same is remanded to the said authority. Further, it would provide a reasonable opportunity for examination of the entire issues in detail on merits, on the basis of grounds submitted by the appellant in these appeals and also on the basis of other grounds to be submitted before the first appellate authority. The impugned order dated 24.10.2019 is set aside - appeal is allowed by condoning the delay in filing the appeal before the Commissioner (Appeals) and remanding the case back to the Commissioner (Appeals-II) i.e., the First Appellate Authority for passing de novo order on merits of the case.

Summary

Issues Involved:
1. Timeliness of the appeal filed before the Commissioner (Appeals-II).
2. Merits of the refund claim rejection by the original authority.

Summary:

Issue 1: Timeliness of the Appeal
The appellant, M/s Cummins Technologies India Private Limited, contested the rejection of their refund claim by the original authority. The Commissioner (Appeals-II) dismissed the appeal on grounds of delay, citing that the appeal was filed almost two and a half years late, beyond the prescribed time limit u/s 85(3A) of the Finance Act, 1994. The appellant claimed to have filed the appeal on 10.02.2017, supported by an acknowledgment from the Service Tax Sevottam Cell. However, the Assistant Commissioner, Sevottam Cell, confirmed that the appeal was not registered on that date. The Tribunal examined the affidavits and the Sevottam framework, concluding that it was plausible the appeal papers were either lost in transit or not properly recorded. The Tribunal found that the appellant had indeed filed the appeal within the prescribed period, and the delay was not attributable to them.

Issue 2: Merits of the Refund Claim Rejection
The original authority rejected the refund claim for Rs.34,45,272/- on grounds including discrepancies in the address on invoices and missing invoices. The Commissioner (Appeals-II) did not examine these merits due to the perceived delay in filing the appeal. The Tribunal noted that the merits of the case, including the appellant's compliance with Section 85(3A) and the validity of the refund claim, needed thorough examination. The Tribunal highlighted the appellant's reliance on various case laws supporting their eligibility for the refund despite the address discrepancies and other document-related issues.

Conclusion:
The Tribunal set aside the impugned order dated 24.10.2019, condoned the delay in filing the appeal, and remanded the case back to the Commissioner (Appeals-II) for a de novo order on the merits. The Commissioner (Appeals-II) is directed to provide a reasonable opportunity for personal hearing and consider all relevant documents and grounds submitted by the appellant.