2020 (3) TMI 1002 - AT - Service Tax

Maintainability of appeal - time limitation - it is submitted that the order passed by the adjudicating authority dated 27.1.2011 was not served on the appellant - Business Auxiliary services - non-payment of service tax - HELD THAT - The Commissioner (Appeals) has dismissed the appeal observing that it is time-barred and also noting that the Order-in-Original was received and acknowledged by the appellant on 10.2.2011. However, on perusal of records, we do not find any document to show that the appellant has been served with the copy of the Order-in-Original dated 10.2.2011. Though the Bench directed the department to produce documents to prove that the Order-in-Original has been served to the appellant, they have not been able to do so. The appellant has to be given a chance to contest the case on merits - The impugned order is set aside and the appeal is allowed by way of remand to the Commissioner (Appeals).

Summary

Issues:
1. Timeliness of filing the appeal before Commissioner (Appeals) and the subsequent rejection on the ground of being time-barred.
2. Lack of proof regarding the service of the Order-in-Original dated 27.1.2011 to the appellant.
3. Request for remand to the Commissioner (Appeals) for consideration on merits.

Analysis:
1. The appellant was issued a Show Cause Notice for alleged non-payment of service tax under Business Auxiliary Service for a specific period. The adjudicating authority confirmed the demand, interest, and imposed a penalty. The appellant's appeal before Commissioner (Appeals) was rejected as time-barred. The appellant argued that the order dated 27.1.2011 was not served on them, and they obtained a copy on 2.12.2013, filing the appeal within time from receipt of the Order-in-Original. The Commissioner (Appeals) relied on information that the order was acknowledged by the appellant on 10.2.2011. The appellant contended that they did not receive the order and filed the appeal promptly after obtaining a copy. The Tribunal noted the lack of evidence of service and allowed the appeal by remanding the case for consideration on merits.

2. The department could not provide proof of the service of the Order-in-Original dated 27.1.2011 to the appellant despite attempts to trace the details. The Tribunal observed that there was no document showing the appellant had been served with the order dated 10.2.2011. The lack of evidence led to the decision to give the appellant an opportunity to contest the case on merits. The Tribunal set aside the impugned order and allowed the appeal for remand to the Commissioner (Appeals).

3. The Tribunal, after hearing both sides, found that the Commissioner (Appeals) had dismissed the appeal as time-barred without concrete evidence of the appellant being served with the Order-in-Original. As a result, the Tribunal decided to grant the appellant the chance to present their case on merits by remanding the matter back to the Commissioner (Appeals). The order was set aside, and the appeal was allowed for further consideration.

This judgment highlights the importance of proper service of orders and the need for concrete evidence in legal proceedings to ensure fair treatment of parties involved.