2009 (7) TMI 448 - AT - Service Tax

Appeal to Commissioner - Commissioner dismissed its appeal holding the same to be time barred as the appellant had received the order-in-original on 3-3-07 while appeal was filed on 27-11-08. - The appellant claim that he was never served with any order on 3-3-07 by the Adjudicating Authority. The order was only received by the appellant on 28-8-08. But Commissioner has observed clearly that the order-in-original was served on the appellant with the acknowledgement of service of the order on 3-3-07. - No evidence was lead before the learned Commissioner (Appeals) to show that there was no mala fide by the appellant to follow the deliberate tactics - When the appellant does not dispute that order was served on 3-3-07 on one Shri Jaipal Singh, the appellant has not come out with clean hands to prove its bona fide submitting that the order could not receive attention of appellant because that was served on Shri Jaipal Singh. The case clearly throws light that the appellant is an indolent with out being conscious to exercise its right of redressal. - No presumption can be made against a public authority in absence of his ma/a fides brought by other side to show that a Public Authority kept quiet after passing an order without the same being served to cause prejudice to the interest of revenue - There is no material to approve that the delay was beyond the means of the appellant and there exists a reasonable cause to intervene into the matter. Therefore, we dismiss both the stay application as well as appeal.

Summary

Issues:
1. Appeal dismissal on the grounds of being time-barred due to late filing.
2. Discrepancy in the date of service of the order-in-original to the appellant.
3. Validity of service of the order on a peon.
4. Appellant's diligence in pursuing the appeal within the limitation period.
5. Justification for dismissing the appeal and stay application.

Analysis:
1. The appellant argued that the appeal was not time-barred as they received the order-in-original on 28-8-08 and filed the appeal on 27-11-08, which was within the limitation period. The appellant claimed they were never served the order on 3-3-07 as alleged by the Adjudicating Authority. The appellant's counsel relied on previous court decisions to support the argument that service of an order on a peon is not valid under the law.

2. The Departmental Representative (DR) contended that the order was served in time with acknowledgment on record, and the limitation period should be calculated from 3-3-07. The DR argued that the appeal was rightly rejected by the Commissioner (Appeals) due to the delay in filing.

3. The Tribunal noted that there was no evidence of acknowledgment before them. However, the Commissioner had observed that the order-in-original was served on the appellant with acknowledgment on 3-3-07. The Tribunal distinguished the case cited by the appellant's counsel, emphasizing that the order was served directly on the appellant, not on a peon. The Tribunal found the appellant's lack of diligence in pursuing the appeal and failure to dispute the service of the order on 3-3-07 as significant factors.

4. The Tribunal concluded that the appellant had not shown a reasonable cause for the delay in filing the appeal. The appellant's failure to act promptly after the completion of adjudication in December 2006 raised doubts about their diligence. The Tribunal emphasized that a public authority would not keep an order without serving it to cause prejudice, and there was no evidence of mala fides on the part of the authority.

5. Based on the findings and observations, the Tribunal rejected the appellant's argument to remand the matter to the Commissioner (Appeals) for further hearing. The Tribunal found no justification for intervening in the matter and dismissed both the stay application and the appeal, upholding the decision to reject the appeal as time-barred.

*(Dictated and pronounced in open court)*