2013 (10) TMI 1062 - AT - Service Tax

Rejection of appeal by the Commissioner (Appeal) as the same is not filed correctly or verified correctly - Non hearing of matter - Commissioner acknowledged receipt of complaint - Held that - first appellate authority has not considered the entire issue in its correct perspective. In our view, the covering letter dated 27.05.11 wherein an acknowledgment of the office of the Commissioner (Appeals) is indicated is their own person s signature. The covering letter may not be signed by the authorised signatory of the appellant but the appeal papers which were annexed with such letter, a copy which is placed in our records, indicates that the appeal memoranda and the verification have been signed by the appellant s authorised signatory. If that be so, the appeal in our view was correctly filed before the first appellate authority. As indicated hereinabove, we are of the view that the first appellate authority is acknowledging the receipt of letter dated 05.60.13 from the appellant; but does not consider to check with his department, as much as the said letter specifically indicates that the copy of the letter was forwarded to the Additional Commissioner, Service Tax, Ahmedabad. Suffice to say that he could have verified the facts, merely writing or informing the appellant that his appeal cannot be heard as his appeal was not received, seems to be incorrect proposition of the law and not in accordance with the provisions of the Finance Act, 1994. In our view, there seems to be some gap in the office of the Commissioner (Appeals) which needs to be rectified by his office - first appellate authority should direct appellant to reconstruct the appeal if the same is not traced in his office, which observation is due to the fact that the appellant has been able to show us copies of the ST-4 appeals which were signed by their authorised signatory - Decided in favour of assessee.

Issues:
1. Appeal filing process and acknowledgment by the first appellate authority.
2. Verification of appeal receipt by the lower authorities.
3. Correctness of filing appeal before the first appellate authority.
4. Obligation of the first appellate authority to consider receipt of appeal.
5. Direction to reconstruct appeal if not traced.
6. Disposal of stay petition and appeal.

Analysis:

1. The case involves a peculiar situation where the appellant filed an appeal before the first appellate authority, but the authority claimed no appeal was registered. The appellant, under pressure from the department for recovery, requested an early hearing. The first appellate authority failed to verify with the Additional Commissioner of Service Tax regarding the receipt of the appeal, leading to confusion.

2. The tribunal noted that the acknowledgment on the covering letter indicated the office of the Commissioner (Appeals) received the appeal. Although the covering letter might not bear the appellant's authorized signatory's signature, the appeal memoranda and verification attached were signed by the authorized signatory. Thus, the tribunal concluded that the appeal was correctly filed before the first appellate authority.

3. The tribunal criticized the first appellate authority for not considering the facts correctly and failing to verify the receipt of the appeal with the concerned department. Merely informing the appellant that the appeal was not received without proper verification was deemed incorrect and not in line with the provisions of the Finance Act, 1994. The tribunal highlighted a gap in the office of the Commissioner (Appeals) that needed rectification.

4. Consequently, the tribunal directed the first appellate authority to acknowledge the receipt of the appeal and, if necessary, instruct the appellant to reconstruct the appeal if it could not be found in their office. The tribunal emphasized that since the appellant provided copies of the ST-4 appeals signed by their authorized signatory, the first appellate authority should proceed to dispose of the issue on its merits following the principles of natural justice.

5. Finally, the tribunal disposed of the stay petition and the appeal, providing clarity on the correct filing process and the obligation of the first appellate authority to ensure proper verification and consideration of appeals. The judgment highlighted the importance of adherence to procedural requirements and the principles of natural justice in such matters.

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