2019 (5) TMI 1024 - AT - Service Tax

Condonation of delay of 1274 days of filing appeal - applicant claims that the order appealed against was not received by them earlier and the present appeal has been filed within three months from the date of receipt of the order - HELD THAT - In absence of any date delivery of order dispatched by speed post earlier, we hold that the order was for the first time received by the applicant on the date as indicated by them. The order was for the first time received on 16th August 2018 and the applicant has filed the appeal on 16th November 2018 which is within the period prescribed for filing the appeal. The date of order is not relevant for computing the period of limitation for filing appeal - As per Section 86(3) of Finance Act, 1994 appeal has to be filed within three months from the date of receipt of order. The application of condonation of delay itself is not required in this matter as appeal has been filed within three months from the date of receipt of the order and is well within the time - application for COD dismissed.

Summary

Issues: Condonation of delay in filing appeal due to non-receipt of order, validity of dispatch register as evidence, negligence of parties, computation of period of limitation for filing appeal.

Condonation of Delay: The application sought condonation of a 1274-day delay in filing the appeal, attributing it to non-receipt of the order. An enquiry revealed a dispatch register maintained by Revenue as evidence of order dispatch. The applicant contested the completeness of the address in the register, but the Tribunal held that the Revenue's production of the register as evidence binds them to its correctness. Despite the absence of proof of delivery by postal authorities, the Tribunal accepted the applicant's claim of receiving the order on a specific date.

Validity of Dispatch Register: The Tribunal scrutinized the dispatch register's reliability, emphasizing the principle that the party producing a document must prove its correctness. The Tribunal dismissed the Revenue's casual maintenance defense of the register, highlighting that they cannot backtrack after presenting it as evidence.

Negligence of Parties: Both parties were accused of negligence. The Revenue was criticized for not initiating recovery action promptly after the appeal period lapsed, undermining their claim of the applicant's negligence. The Tribunal rejected the argument that the applicant's lack of inquiry post-hearing indicated negligence, emphasizing the Revenue's responsibility for timely recovery actions to protect revenue interests.

Computation of Limitation Period: The Tribunal clarified that the date of the order is irrelevant for calculating the appeal filing deadline. Citing Section 86(3) of the Finance Act, 1994, the Tribunal held that the appeal must be filed within three months of order receipt. As the appeal was lodged within this timeframe from the date of actual receipt, the Tribunal deemed the condonation of delay unnecessary and directed the appeal to proceed for further hearings.