2015 (2) TMI 753 - AT - Service Tax

Denial of refund claim - Bar of limitation - Non receipt of OIO - Held that - no acknowledgment from the appellant has been produced by the department to indicate that OIO dated 12.01.2011 was received. Under similar facts, this bench is taking a view that an appealable order cannot be considered to have been delivered. In view of the case laws relied upon by the appellant the order passed by the first appellate authority is required to be set-aside. Accordingly, the OIA dated 20.12.2012 passed by Commissioner (Appeals) is set-aside and the matter is remanded back to him for passing the order on merits after giving an opportunity of personal hearing to the appellant to argue his case. - Decided in favour of assessee.

Summary

Issues:
1. Appeal against dismissal as time-barred without considering merits.
2. Dispute over receipt of OIO dated 12.01.2011 by the appellant.

Issue 1: Appeal against dismissal as time-barred without considering merits
The appellant filed an appeal against OIA No. 293/2012 dated 20.12.2012, where the first appellate authority dismissed the appeal as time-barred without delving into the merits of the case. The appellant's representative, a Chartered Accountant, argued that they never received the OIO dated 12.01.2011 issued by the Adjudicating authority. The appellant only became aware of the rejection of their refund claim under the OIO when they visited the office on 18.5.2012. The Chartered Accountant contended that the department failed to provide any acknowledgment of the delivery of the OIO. The appellant relied on various case laws to support their argument. On the other hand, the respondent's representative argued that dispatching the OIO to the correct address constitutes sufficient compliance with the delivery of the order. After hearing both sides and examining the case records, the Tribunal found that the issue at hand was whether the appellant received the OIO dated 12.01.2011 or not. As no acknowledgment from the appellant was provided by the department to confirm the receipt, the Tribunal, in line with the case laws cited by the appellant, concluded that the order cannot be considered delivered. Consequently, the Tribunal set aside the OIA dated 20.12.2012 and remanded the matter back to the Commissioner (Appeals) to decide on the merits after providing the appellant with an opportunity for a personal hearing.

Issue 2: Dispute over receipt of OIO dated 12.01.2011 by the appellant
The core issue in this case revolved around whether the OIO dated 12.01.2011 was actually received by the appellant. The appellant contended that they had not received the order until they visited the office on 18.5.2012, which led to the dismissal of their appeal as time-barred. The appellant's argument was supported by the absence of any acknowledgment from the appellant regarding the receipt of the OIO. On the contrary, the respondent argued that dispatching the order to the correct address was sufficient for delivery. However, the Tribunal, after considering the arguments and case laws presented by both parties, concluded that without any acknowledgment from the appellant, the order could not be deemed as delivered. Consequently, the Tribunal allowed the appeal by remanding the matter back to the first appellate authority for a decision on the merits after affording the appellant an opportunity for a personal hearing.

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