2019 (6) TMI 768 - AT - Service Tax

Service of order - Time Limitation - appeal was dismissed solely for the reason that it was filed beyond the period stipulated in Section 85 (3)(A) of the Finance Act 1994 - HELD THAT - Sub-Section (2) of Section 37C provides that every order issued under the Act shall be deemed to have been served on the date on which the order is tendered or delivered by post or courier - In the instant case there is nothing on the record to indicate that the order was either tendered to the appellant or sent by registered post with acknowledgment due or by speed post with proof of delivery or by courier. The Commissioner therefore could not have drawn any assumption but the order passed by the Commissioner reveals that not only did the Commissioner assume that the order was sent to the appellant by one of the modes prescribed under Section 37C but also assumes that it was served upon the appellant within 7 days of the passing of the order. Such an inference drawn by the Commissioner is perverse. Appeal allowed.

Summary

Issues:
1. Appeal against dismissal of appeal for being time-barred under Section 85 (3)(A) of the Finance Act, 1994.
2. Interpretation of Section 85 of the Finance Act regarding the timeline for filing appeals.
3. Examination of the service of decisions and orders under Section 37C of the Central Excise Act in relation to the present case.

Analysis:
1. The appeal was filed against the dismissal of the appellant's appeal by the Commissioner (Appeals) due to being filed beyond the stipulated period under Section 85 (3)(A) of the Finance Act, 1994. The appellant claimed to have received the order on 14 April, 2015, while the order was dated 27 February, 2015. The Commissioner (Appeals) dismissed the appeal as time-barred, noting that the appeal should have been filed by 7 May, 2015, which was 63 days after the supposed receipt of the order. However, the Commissioner did not seek evidence of the order's delivery, leading to a flawed assumption regarding the timeline for filing the appeal.

2. Section 85 of the Finance Act outlines the process for filing appeals against decisions or orders of Adjudicating Authorities. Sub-section (3A) specifies a two-month timeline for filing appeals, with a provision for a further one-month extension if sufficient cause is shown. In this case, the appellant's claim of receiving the order on 14 April, 2015, was crucial in determining the filing deadline. The Tribunal criticized the Commissioner for assuming the order's receipt within a week of issuance without verifying the mode or date of service, highlighting the importance of adhering to procedural requirements when dismissing appeals as time-barred.

3. The judgment delves into Section 37C of the Central Excise Act, which governs the service of decisions, orders, and summons. It mandates specific methods of service, such as registered post with acknowledgment due or courier, to ensure proper communication of orders. The Tribunal noted the absence of evidence regarding the order's service to the appellant, emphasizing the Commissioner's error in assuming timely receipt without verifying compliance with Section 37C. The Tribunal directed the Adjudicating Authority to investigate and report on the dispatch and service of the order to rectify the procedural lapse and allow the appeal accordingly.

In conclusion, the Tribunal set aside the Commissioner's order, highlighting the necessity of following prescribed procedures for serving orders and determining timelines for filing appeals under the relevant statutory provisions. The judgment underscores the importance of procedural compliance and factual verification in adjudicating appeals related to service tax matters.