2014 (2) TMI 195 - AT - Service Tax

Condonation od delay - Copy of adjudication order not received - Proof of service - Held that - On an inter active application of the provisions of sub-section (1) and (2) of Section 37(C) the conclusion is compelling that where Revenue seeks to serve an adjudication order by sending it through by registered post, proof of service/proof of delivery of the communication on the assessee is an integral component of facts relevant to an inference as to the date of communication. The ld. Commissioner (Appeals) has inferred, from the fact of the adjudication order having been sent by registered post that there was a delivery of the registered post to the assessee. This inference suffers from a factual vacuum viz. proof of delivery - appellate order rejecting the appeal on the ground of bar of limitation is unsustainable - matter remanded to the Commissioner (Appeals), Jaipur for consideration of the appellant s appeal on merits - Decided in favour of assessee.

Summary

Issues:
1. Appeal dismissed on the point of limitation.
2. Service of adjudication order on the appellant.
3. Consideration of appeal on merits.

Analysis:
1. The appeal was disposed of at the stage of a miscellaneous application due to falling within a narrow compass of facts. The appellant's appeal was rejected by the appellate authority on the point of limitation, based on the adjudication order dated 31.3.2011. The appellant argued that they became aware of the order only upon receiving a recovery notice on 24.11.2008. Despite multiple requests for a copy of the order, it was only received on 27.3.2010, leading to the appeal being filed. The appellate authority referred to a judgment of the Madras High Court regarding the deemed service of the order through registered post.

2. The appellate authority's decision was based on the premise that the adjudication order dispatched via registered post on 20.5.2008 was deemed served on the appellant. However, the appellant contended that the delay in receiving the order was due to non-furnishing of the same despite repeated requests. The provisions of Section 37(C)(2) of the Central Excise Act were analyzed, emphasizing the requirement of proof of delivery for communication of decisions or orders. The absence of proof of delivery raised questions about the validity of inferring service based solely on dispatch via registered post.

3. The appellate order's rejection of the appeal on the ground of limitation was deemed unsustainable upon a thorough analysis of the facts and legal provisions. The judgment highlighted the importance of proof of delivery in cases of communication through registered post. The matter was remanded to the Commissioner (Appeals) for a reconsideration of the appellant's appeal on merits, specifically focusing on the service of the adjudication order as per the provisions of the Central Excise Act. The Commissioner was directed to consider any alternative modes of service and provide the appellant with relevant information or materials before making a decision, ensuring compliance with due process of law.

This detailed analysis of the judgment showcases the critical examination of the issues involved, particularly concerning the service of the adjudication order and the subsequent consideration of the appeal on its merits.