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2013 (5) TMI 83 - AT - Service TaxPeriod of limitation - can an appeal came after 3 years, one month and 12 days, be considered to be time barred - Held that - Carefully perusing the judgments Raja Kumari (2004 (11) TMI 515 - SUPREME COURT) with Section 37C of the 1944 Act, Section 27 of the General Clauses Act and Section 144 of the Indian Evidence Act it can safely be said that sending the order at correct address by registered post is a sufficient compliance of Section 37C of the 1944 Act. It is for the assesse to rebut the presumption of service by cogent evidence that in fact order was never served upon him. In the present matter, assessee failed to discharge his burden and sending the order by registered post at the correct address is sufficient compliance. Against assessee.
Issues:
1. Timeliness of appeal filing based on the date of adjudication order despatch. 2. Evidence of service of the adjudication order by registered post. 3. Presumption of service in favor of public officers unless controverted by cogent evidence. 4. Previous judgments supporting the sufficiency of sending orders by registered post at the correct address. 5. Dismissal of the appeal and stay application based on the above observations. Analysis: 1. The judgment revolves around the timeliness of filing an appeal based on the date of despatch of the adjudication order. The Commissioner (Appeals) considered the appeal time-barred as it came before him after an extended period from the date of despatch. However, the appellant argued that they received the order later than the date of despatch. The Tribunal noted that the order was served at the address provided by the appellant, and the receipt of a copy upon request does not negate the original order's delivery. 2. The Tribunal emphasized the importance of evidence of service before the limitation period, highlighting that in the absence of evidence to the contrary, the presumption of service is in favor of the public officer acting in good faith. The burden lies on the assessee to provide cogent evidence if they contest the service of the order. 3. Referring to a previous case, the Tribunal discussed the defense of wrong service on a different person by the assessee, which was not proven. This led to the dismissal of the appeal in that case. The judgment also cited decisions from the High Courts of Rajasthan and Punjab & Haryana, supporting the sufficiency of sending orders by registered post to the correct address. 4. The Tribunal reiterated the principles laid down in the judgments of the High Courts, emphasizing that sending the order by registered post to the correct address constitutes sufficient compliance. It is incumbent upon the assessee to rebut the presumption of service with substantial evidence if they claim non-receipt of the order. In the present case, the appellant failed to discharge this burden, leading to the dismissal of the appeal and the stay application. 5. Based on the above observations and legal precedents, the Tribunal concluded that there was no justification to keep the appeal pending, resulting in its dismissal along with the dismissal of the stay application. This detailed analysis of the judgment highlights the key issues addressed by the Tribunal regarding the timeliness of appeal filing, evidence of service, presumption in favor of public officers, and the sufficiency of sending orders by registered post to the correct address.
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