2014 (1) TMI 1195 - AT - Service Tax

Condonation of delay - Waiver of pre-deposit of Service Tax - Cable operators service - Bar of limitation - Held that - adjudication order was sent through speed post twice by the Revenue and the same has been received back undelivered. There is no evidence on record to show that the adjudication order was affixed as per the provisions of Section 37C of the Central Excise Act, 1944 - sending of adjudication order by speed post is not a valid service as per Section 37C of the Central Excise Act, 1944 as the order is to be sent by registered post with acknowledgement due. In these circumstances, we find merit in the contention of the appellant that the impugned order dismissing the appeal as time-barred is not sustainable. The impugned order is therefore set aside after waiving pre-deposit of the dues and the matter is remanded to the Commissioner (Appeals) to decide the application for waiver of dues afresh after affording an opportunity of hearing to the appellant and thereafter to decide the appeal on merits in accordance with law - Decided in favour of assessee.

Summary

Issues:
- Application for waiver of pre-deposit of Service Tax
- Dismissal of appeal by Commissioner (Appeals) as time-barred
- Validity of service of adjudication order via speed post
- Applicability of Section 37C of the Central Excise Act, 1944
- Setting aside the impugned order and remanding the matter to Commissioner (Appeals)

Analysis:
1. The applicant filed an application for the waiver of pre-deposit of Service Tax amounting to Rs. 8,33,862/-, interest, and penalty. The demand was confirmed due to the provision of cable operators service, leading to penalties imposed by the adjudicating authority. The appeal, along with the waiver application, was dismissed by the Commissioner (Appeals) as time-barred.

2. The applicant contended that the adjudication order was not received promptly, leading to the delay in filing the appeal. The order was passed on 15-10-2009 but issued on 23-10-2009. The applicant received a communication about non-deposit of the amount in question on 22-4-2011 and filed the appeal on 13-7-2011 within the limitation period. Thus, the dismissal of the appeal by the Commissioner (Appeals) was challenged on the grounds of the delay being justified.

3. The Revenue argued that the adjudication order was sent via speed post but returned undelivered. In response, the applicant cited the decision of the Hon'ble Bombay High Court, highlighting that sending adjudication orders via speed post is not a valid service under Section 37C of the Central Excise Act, 1944. The absence of evidence of affixing the order as per the Act was emphasized.

4. The Tribunal found merit in the appellant's argument, considering the lack of evidence showing compliance with the statutory requirements for service of the adjudication order. Referring to the precedent set by the Hon'ble Bombay High Court, the Tribunal concluded that the dismissal of the appeal as time-barred was unsustainable. Consequently, the impugned order was set aside, pre-deposit of dues was waived, and the matter was remanded to the Commissioner (Appeals) for a fresh decision after providing a hearing opportunity to the appellant.

5. The appeal was disposed of through remand, ensuring a fair consideration of the waiver application and the appeal on its merits in accordance with the law. The judgment emphasized the importance of adhering to the prescribed procedures for service and the right to a timely appeal process, ultimately upholding the appellant's contentions and granting relief by setting aside the initial order.