2014 (12) TMI 962 - AT - Service Tax

Whether the appeal filed before the Commissioner (Appeals) was barred by limitation or otherwise - Held that - It is the claim of the Appellant that even though they were communicated with the Order-in-Original on 19.01.2011 by hand-delivery; but the certified copy was received by them on 04.04.2011. Therefore, the date of receipt of the certified copy of the impugned Order-in-Original be considered as the date of communication of the Order and the limitation should start from that date. I do not find force in the argument of the ld. FCA for the Appellant. Since the Order was communicated to them on 19.01.2011, the appeal could have been filed on the basis of such Order, and it cannot be construed that the date of communication of the certified copy thereof, be considered as the date of communication for the purpose of computation of the time-limit of three months, as prescribed under Section 85(3) of the Finance Act, 1994. - appeal dismissed.

Summary

Issues:
1. Waiver of predeposit of penalty under Sections 76, 77, and 78 of the Finance Act, 1994.
2. Determination of the limitation period for filing an appeal before the ld. Commissioner (Appeals).

Analysis:
1. The Application sought waiver of predeposit of penalties totaling &8377; 7,73,530/- under Section 78, &8377; 5,000/- under Section 77, and an unspecified penalty under Section 76 of the Finance Act, 1994. The Appellant contended that they had paid the entire service tax amount along with interest before the show cause notice was issued. The Appellant argued that the appeal filed before the ld. Commissioner (Appeals) was not time-barred as the certified copy of the Order-in-Original, dated 17.08.2010, was received on 04.04.2011, and thus, the limitation period should start from that date.

2. The Revenue, represented by Shri Aniruddha Roy, contended that the Order-in-Original was initially communicated to the Applicant via Speed Post on 18.08.2010, received on 19.08.2010, and handed over again on 19.01.2011 upon the Applicant's request. The Revenue argued that the date of communication should be considered as 19.08.2010, not 19.01.2011 or 04.04.2011. After hearing both sides, the Tribunal found that the crucial issue was whether the appeal filed before the ld. Commissioner (Appeals) was within the limitation period. The Tribunal held that the date of communication of the Order-in-Original was 19.01.2011, and the appeal could have been filed based on that date. Therefore, the date of receipt of the certified copy on 04.04.2011 could not be considered as the date of communication for computing the three-month time limit under Section 85(3) of the Finance Act, 1994.

3. Consequently, the Tribunal dismissed the Appeal, finding no merit in the Appellant's argument regarding the limitation period for filing the appeal before the ld. Commissioner (Appeals). The Tribunal held that the date of communication of the Order-in-Original was 19.01.2011, and the appeal should have been filed based on that date. Therefore, the Tribunal found that the appeal was time-barred and dismissed it accordingly. The Stay Petition was also disposed of in line with the dismissal of the Appeal.