2017 (3) TMI 1023 - AT - Service Tax

Condonation of delay - delay in filing appeal - non-service of notice in terms of Section 37C of the CEA, 1944 - Held that - Tribunal has, on more than one occasion, directed the Revenue to file an affidavit specifically regarding compliance of the provision of Section 37C(1)(a) in the present case and also indicating the proof of delivery of the original order to the appellant. Unfortunately, despite of repeated instructions, such affidavits has not been filed. It is not incorrect to draw adverse inference from such non-submission of affidavit - Evidence of service is lacking in the present case. Accordingly, in the interest of justice, it is not fair to dismiss the appeal as time barred as done by the impugned order - The appeal is to be considered as filed in time - appeal allowed by way of remand.

Summary

Issues: Delay in filing appeal due to non-receipt of original order served by speed post instead of registered post with acknowledgment due - Compliance with Section 37C of Central Excise Act, 1944 - Adverse inference due to non-submission of affidavit by Revenue - Lack of evidence of service - Appeal allowed by way of remand.

Analysis:
1. Delay in filing appeal: The appellant filed an appeal against the order dated 30/11/2010 issued by the Assistant Commissioner, Central Excise Division - II, Jaipur, before the Commissioner (Appeals) on 14/08/2012. The appeal was dismissed by the Commissioner (Appeals) citing delay in filing beyond the time limit prescribed under Section 85 of the Finance Act, 1994. The appellant claimed they did not receive the original order and only became aware of it when the Department initiated recovery action. They received the order on 18/05/2012 after filing an application under the RTI Act. The appellant argued that the order should have been served as per Section 37C of the Central Excise Act, 1944, which mandates sending the order by registered post with acknowledgment due.

2. Compliance with Section 37C: The appellant contended that the order was sent by speed post, not in compliance with the provision of Section 37C (1) (a) of the Central Excise Act, 1944. They relied on a decision of the Hon’ble Bombay High Court emphasizing the mandatory nature of serving the order by registered post with acknowledgment due. The appellant submitted a sworn affidavit stating they did not receive the original order before 18/05/2012, challenging the delay in filing the appeal.

3. Adverse Inference and Lack of Evidence: Despite repeated instructions, the Revenue failed to file an affidavit regarding compliance with Section 37C (1) (a) and proof of delivery of the original order to the appellant. The absence of such affidavits led to an adverse inference against the Revenue. The Tribunal noted the lack of evidence supporting the service of the order and emphasized that no general presumption could be made without supporting evidence. In the absence of contrary evidence, the Tribunal considered the appeal as filed in time, setting aside the impugned order and remanding the matter back to the Commissioner (Appeals) for a decision on merits.

4. Appeal Allowed by Way of Remand: The Tribunal allowed the appeal by way of remand, considering the appellant’s claim of non-receipt of the original order and the lack of evidence supporting the service. The decision highlighted the importance of compliance with statutory provisions for serving orders and the necessity of providing evidence of delivery. The case underscores the significance of procedural requirements in filing appeals and the need for proper documentation to establish the timely receipt of orders by the concerned parties.