2013 (12) TMI 852 - AT - Service Tax

Condonation of delay - Order not received in time - Held that - Commissioner (Appeals) in his order has observed that on a verification made with the Assistant Commissioner Hyderabad-II Division it had been reported that the order-in-original was sent by registered post acknowledgment due and the learned Commissioner took the view that once the order has been sent by registered post acknowledgment due the order is deemed to have been communicated and therefore the appeal has to be considered as having been filed with considerable amount of delay which cannot be condoned. When the matter had come up before the Tribunal on 9-12-2011 the authorized representative of the department was directed to produce evidence regarding dispatch of order-in-original to the appellant - However once it is clear that the order-in-original was sent by speed post the responsibility to show that it was received by the appellant is on the department - Under these circumstances the claim made by the appellant that they had not received the order-in-original and they had collected it on 22-3-2011 has to be accepted. Accordingly the impugned order is set aside and the appeal is remanded for reconsideration of the Commissioner (Appeals) for fresh decision in accordance with law - Delay condoned.

Summary

Issues involved: Appeal rejection due to delay in filing, communication of order-in-original, condonation of delay.

Analysis:

1. Appeal rejection due to delay in filing:
The appeal filed by the appellant was rejected by the Commissioner (Appeals) citing a considerable delay in filing. The Commissioner held that the delay was beyond their powers of condonation. However, upon hearing both sides, the Appellate Tribunal decided to waive the pre-deposit and take up the appeal for final decision without delving into the merits, as the main issue was whether the appellant had received the order in time and if there was a delay in filing the appeal.

2. Communication of order-in-original:
The Commissioner (Appeals) had initially stated that the order-in-original was sent to the appellant by registered post acknowledgment due, deeming the order as communicated and thus justifying the delay in filing the appeal. However, during the Tribunal proceedings, it was revealed that the order was actually sent by speed post, not by registered post acknowledgment due. As per Section 37C, if the order had been sent by registered post acknowledgment due, the issue of receipt would arise. Since it was sent by speed post, the burden of proof shifted to the department to show that the appellant had received the order. The department failed to provide evidence of receipt, leading to the acceptance of the appellant's claim that they had not received the order-in-original until a later date.

3. Condonation of delay:
In light of the above findings, the Tribunal set aside the impugned order and remanded the appeal for reconsideration by the Commissioner (Appeals) for a fresh decision in accordance with the law. This decision was based on the lack of evidence from the department regarding the receipt of the order-in-original by the appellant, leading to the acceptance of the appellant's claim of non-receipt until a later date.

In conclusion, the judgment focused on the communication of the order-in-original, the delay in filing the appeal, and the responsibility of the department to provide evidence of receipt. The Tribunal's decision to remand the appeal for reconsideration was based on the lack of proof of receipt by the appellant, ultimately leading to the setting aside of the initial rejection of the appeal.