2013 (5) TMI 146 - AT - Service Tax

Condonation of delay of more than 440 days - Held that - It is an admitted position that the order was served to the appellant as confirmed from the speed post acknowledgement that daughter-in-law, of the appellant has received the order by speed post delivery. The dispute of the mode of communication as raised by assessee has no relevancy in the present case. cod application dismissed.

Summary

Issues:
1. Condoning the delay in filing the appeal.
2. Valid service of the order to the appellant.
3. Relevance of mode of communication in appeal process.

Condoning the Delay in Filing the Appeal:
The applicant sought condonation of an 18-day delay in filing the appeal due to the misplacement of the file during office shifting. The learned counsel submitted an affidavit to support the claim. The Tribunal, after considering both sides, decided to condone the delay, emphasizing the narrow compass of the issue. The appeal was taken up for final decision after disposing of the stay petition.

Valid Service of the Order to the Appellant:
The Commissioner (Appeals) had rejected the appeal as time-barred, citing a delay of over 440 days in filing. The appellant argued that the order was not validly served as it was sent via speed post, which they claimed did not comply with Section 37C of the Central Excise Act, 1944. The appellant referenced a decision of the Bombay High Court regarding the mode of service. However, the Tribunal noted that the order was indeed received by the appellant's daughter-in-law, as evidenced by the speed post acknowledgment. Section 35(1) of the Act mandates filing an appeal within sixty days of order communication, which was not disputed in this case. The Tribunal found the mode of communication dispute irrelevant and dismissed the appeal, stating that the case law cited by the appellant did not apply.

Relevance of Mode of Communication in Appeal Process:
The Tribunal emphasized that the crucial factor was the actual receipt of the order by the appellant, rather than the specific mode of communication. Unlike the case cited by the appellant, where the order was not received, in this instance, the order was successfully served. Therefore, the Tribunal found no fault in the Commissioner (Appeals)'s decision to reject the appeal. Consequently, the appeal was dismissed, and the stay application was also disposed of.

This comprehensive analysis of the judgment addresses the issues of condoning the delay, valid service of the order, and the relevance of the mode of communication in the appeal process, providing a detailed overview of the Tribunal's decision-making process and legal reasoning.