2020 (10) TMI 1064 - AT - Service Tax

Delay in filing of appeal - Proof of delivery of adjudication order - 100% EOU STPI - Refund of unutilized CENVAT credit - input services used for providing the output services exported during the period October 2009 to March 2010 - rejection on the ground of time limitation - Section 37C of Central Excise Act, 1944 - HELD THAT - As per the respondent, the Order-in-Original dt. 29/02/2012 was issued on 09/03/2012 and the appellant has filed the appeal before the Commissioner on 05/02/2013 which is beyond the period as prescribed in Section 85(3A) of the Finance Act, 1994. We further find that the Department has not been able to establish by any cogent evidence that the Order-in-Original was actually delivered to the appellant. Further we find that the appellant was not aware of the issuance of the Order-in-Original dt. 29/02/2012 and they wrote 3 follow-up letters dt. 11/07/2012, 21/08/2012 and 17/10/2012 enquiring about the status of the adjudication. These letters, in spite of the fact that they were received by the Department, were not responded to at all by the Department and the Department did not inform the appellant regarding the status of their adjudication. Not only this, the appellant has also filed a RTI application before the CBEC but the same has not yielded any result. The High Court of Rajasthan in the case of M/S RP CASTING PVT LTD VERSUS THE CUSTOM, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI AND ANR 2016 (6) TMI 996 - RAJASTHAN HIGH COURT and M/S. VINOD CHOUDHARY VERSUS UNION OF INDIA OTHERS 2016 (5) TMI 834 - RAJASTHAN HIGH COURT have also categorically held that the Department has to prove the delivery of the orders and dispatch of the order is not sufficient for the purpose of calculating the period of limitation for filing the appeal before the Commissioner(Appeals). The appeal of the appellant is within time from the date of receipt of Order-in-Original - case remanded to the Commissioner(Appeals) - appeal allowed by wayof remand.

Summary

Issues:
- Appeal against rejection of refund claim on time bar without considering merits.
- Appellant's contention of timely filing appeal based on non-receipt of Order-in-Original.
- Department's argument of deemed service based on dispatch proof.
- Interpretation of Section 37C of Central Excise Act, 1944 regarding service of decisions.

Analysis:
1. The appeal challenged the rejection of the refund claim by the Commissioner solely on the grounds of being time-barred without delving into the merits of the claim. The appellant, a 100% EOU - STPI, filed a refund claim seeking unutilized cenvat credit. The dispute arose when the Assistant Commissioner rejected the claim, leading to the appeal before the Commissioner(Appeals).

2. The primary issue revolved around the timeliness of the appeal filing. The appellant argued that they only received a photocopy of the Order-in-Original after a considerable delay, which led to the delayed filing of the appeal. The appellant contended that the burden of proof regarding non-receipt of the order lay with the Department, emphasizing the lack of concrete evidence of delivery.

3. The Department, however, relied on the proof of dispatch by Registered Post with Acknowledgment Due (RPAD) to assert deemed service of the order. The Department maintained that the appellant's receipt of the photocopy of the order at the registered address implied service of the original order. The legal dispute centered on the interpretation of Section 37C of the Central Excise Act, 1944 regarding the service of decisions, orders, and notices.

4. The Tribunal critically analyzed the arguments presented by both parties. It emphasized the necessity of actual delivery for valid service, as dispatch alone did not suffice. Citing relevant case laws such as Margra Industries Ltd., R.P. Casting Pvt. Ltd., and Vinod Choudhary, the Tribunal highlighted the Department's obligation to prove delivery for calculating the appeal filing period accurately.

5. Ultimately, the Tribunal found in favor of the appellant, deeming the impugned order unsustainable in law. It set aside the rejection and ruled that the appeal was filed within the permissible time frame from the date of actual receipt of the Order-in-Original. The case was remanded to the Commissioner(Appeals) for a fresh decision on the merits, emphasizing adherence to natural justice principles and providing a fair hearing to the appellant.