2019 (4) TMI 1005 - AT - Service Tax

Maintainability of appeal - appeal has been dismissed for the reason that it was not filed within the period stipulated in Section 85 (3) of the Finance 1994 - HELD THAT - In the present case it is not in dispute that the order passed by the Assistant Commissioner (STC) was sent to the appellant by speed post on 16 January, 2012 and was not sent by registered post with acknowledgment due. At the relevant time there was no provision for sending the order by speed post. The Commissioner (Appeals), after noticing that the order was dispatched on 16 January, 2012 by speed post, presumed that it should have been delivered within 15 to 20 days. The order dated 9 January, 2012, passed by the Adjudicating Authority, was not sent to the appellant by either of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. The Commissioner (Appeals) was, therefore, was not justified in observing that since the order was sent by speed post on 16 January 2012, it should be deemed to have been served on the appellant within 15-20 days from the date of dispatch. The appeal was required to be filed, within 3 months from the date of receipt of the decision or order of the adjudicating authority - The Commissioner (Appeals), therefore, committed an illegality in holding that the appeal had been filed not only beyond the statutory period of limitation but also beyond the extended period of limitation provided for under in Section 85(3) of the Act. Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appeal dismissal due to delay in filing within stipulated period under Section 85(3A) of the Finance Act.
2. Dispute regarding deemed service of order due to mode of delivery - speed post vs. registered post with acknowledgment due.

Issue 1: Appeal Dismissal for Filing Delay
The appeal sought to challenge the dismissal order by the Commissioner (Appeals) due to not being filed within the specified period under Section 85(3A) of the Finance Act. The Commissioner dismissed the appeal citing a delay of approximately 914 days, which was deemed not condonable based on a Supreme Court decision.

Issue 2: Dispute Over Deemed Service of Order
The dispute arose regarding the deemed service of the order as it was sent to the appellant via speed post instead of registered post with acknowledgment due, as prescribed under Section 37(C) of the Central Excise Act. The Commissioner presumed the order should have been delivered within 15-20 days based on a report, leading to the conclusion that the appeal was filed beyond the statutory limitation period.

The appellant argued that the order should be deemed served only if sent through the prescribed modes under the Central Excise Act. They relied on decisions from the Bombay High Court to support their stance, emphasizing the mandatory nature of serving orders by registered post with acknowledgment due.

The Tribunal found that the order was not sent through the prescribed modes, thus the deeming provision under Section 37(C) could not apply. Consequently, the Commissioner's inference that the order was served within 15-20 days was deemed incorrect. The appeal was filed within the stipulated period under Section 85(3A) of the Finance Act, and the Commissioner's decision to dismiss the appeal was considered unjustified.

In conclusion, the Tribunal set aside the dismissal order and directed the Commissioner to decide the appeal on its merits, highlighting the importance of adhering to prescribed modes for service of orders to ensure timely and valid communication in legal proceedings.