2024 (7) TMI 620 - AT - Service Tax

Rejection of appeal on the ground of time bar - absence of any power to condone the delay beyond 90 days - HELD THAT - From the Clause (a) of Section 37 C, it is unambiguous that the order needs to be served to the person for whom it is intended that means to the appellant or to his authorized agent if any person is authorized. In the facts of the present case, the order was served to a contract security person Shri Rajendra Singh Bisht, admittedly he is not the authorized person of the appellant company. Therefore, the order was neither served to the appellant nor to any authorized person. In accordance with Section 37 C (a) the order was not served as per the statutory provision. Therefore, such service cannot be considered as service of the order. The appellant after knowing about the Order-In-Original through recovery notice of the department searched the order and could trace it on 25.10.2023. Since the Commissioner (Appeals) has rejected the appeal on time bar, merits of the case was not considered by him. Therefore, the matter needs to be remanded to the Commissioner (Appeals) for deciding the matter on merit - Appeal is allowed by way of remand to the Commissioner (Appeals).

Summary

Issues Involved:
1. Early hearing application rejected by Commissioner (Appeals)
2. Appeal dismissed for delay in filing
3. Dispute regarding the date of communication of the order

Analysis:
1. The Appellate Tribunal found that the Commissioner (Appeals) rejected the appeal solely on the grounds of being time-barred and not on merit. The Tribunal deemed it unjustified to keep the appeal pending based on this reason alone. Therefore, the Early hearing application was allowed, and the appeal itself was taken up for disposal with the consent of both parties.

2. The impugned order dismissed the appeal due to a delay in filing, as it was submitted after 90 days. The appellant argued that the order was not served to the intended recipient or their authorized agent as per Section 37C of the Central Excise Act, 1944. The appellant claimed that the actual date of communication was when they discovered the order, not when it was initially received by an unauthorized person. Citing various judgments, the appellant contended that the appeal was filed within the permissible timeframe.

3. The Tribunal, after considering submissions from both sides and reviewing the statutory provision under Section 37C, concluded that the order was not served in accordance with the law. The order was found by the appellant after receiving a recovery notice, and it was within the 60-day filing period. Referring to established legal principles, the Tribunal determined that the appeal was filed on time and set aside the Commissioner (Appeals) decision. The matter was remanded back to the Commissioner (Appeals) for consideration on merit.

In conclusion, the Appellate Tribunal allowed the appeal by way of remand to the Commissioner (Appeals) after setting aside the impugned order. The decision was based on the finding that the appeal was not time-barred and needed to be considered on its merits by the Commissioner (Appeals).