2019 (2) TMI 1353 - AT - Service Tax

Satisfaction of requirements of the pre-deposit - the appellant has not submitted proof of mandatory deposit in terms of section 129 A of the Customs Act, 1962 - service of order - proof of delivery - Held that - Section 37C which deals with service of decision, orders, summons etc. provides that decision / orders shall be served by tendering the decision, order summons or notice, or sending it by registered post with acknowledgement due or by speed post with proof of delivery. The department has only placed before us a copy of the dispatch register with postal receipts to demonstrate that it was dispatched, but proof of delivery has not been placed before us. In such circumstances, it is difficult to presume that order was actually served by speed post upon the appellant. The matter is remanded to the Commissioner (Appeals) to decide it on merits - appeal allowed by way of remand.

Summary

Issues:
1. Failure to submit proof of mandatory deposit under section 129 A of the Customs Act, 1962.
2. Dismissal of appeal by Commissioner (Appeals) for not filing within stipulated period and not depositing 7.5% of disputed amount as required by Section 35F of the Central Excise Act, 1944.
3. Discrepancies in the service of the Order-in-Original and proof of delivery.
4. Appeal challenging the dismissal and requesting remand for decision on merits.

Analysis:
1. The appellant failed to submit proof of mandatory deposit under section 129 A of the Customs Act, 1962. An affidavit was filed stating that an amount had been recovered from the appellant's bank account, satisfying the pre-deposit requirement. The Bank confirmed the deduction and transfer of funds to the tax authority, fulfilling the mandatory pre-deposit condition, making the appeal competent.

2. The appeal was dismissed by the Commissioner (Appeals) due to two reasons: not filing within the stipulated period and not depositing 7.5% of the disputed amount as mandated by Section 35F of the Central Excise Act, 1944. The appellant's delay explanation was based on the recovery notice date and subsequent communications regarding the order's delivery. The appellant contended that the appeal was filed within the stipulated period upon receiving the order, challenging the dismissal.

3. Discrepancies arose regarding the service of the Order-in-Original and proof of delivery. The appellant claimed the order was received after the communication dated 29/31 May 2018, justifying the appeal filing within the stipulated time. The department failed to provide conclusive proof of delivery, relying only on dispatch records. The absence of delivery confirmation raised doubts about the actual service of the order, leading to a remand for further examination.

4. The Tribunal set aside the appellate order dated 29 June 2018, remanding the matter to the Commissioner (Appeals) for a decision on merits. Despite the deduction from the appellant's bank account and transfer to the tax authority, the dismissal for non-compliance with the pre-deposit requirement was deemed unjustified. The appeal was allowed for further consideration on its merits, emphasizing the importance of statutory compliance and procedural correctness in appeal processes.