2021 (9) TMI 494 - AT - Service Tax

Maintainability of appeal - time limitation for filing appeal - appeal filed within two months from the date of receipt of Order-in-Original as is required under Section 35A of Central Excise Act - manpower recruitment supply agency service - HELD THAT - The date of Order-in-Original is 18.03.2019 but there is no evidence to show as to when the said order was received by the appellant. The learned Commissioner (Appeals) has mentioned that OIO was dispatched by registered post and has not been received back undelivered, therefore, is deemed to be delivered. The findings itself makes it clear that the findings of Commissioner (Appeals) are merely presumptive. There is no effort on the said adjudicating authority to ensure as to whether the order was actually received by the appellant or not. Period of limitation for filing an appeal before the Commissioner is no doubt of 2 months but this period has to reckon not from the date of Order-in-Original i.e. the order challenged before Commissioner (Appeals), but from the date of receipt of said Order-in Original by the assessee. The valuable right of the assessee to seek a remedy by way of appeal cannot be forfeited based on mere presumptions and surmises - It is clear that there is no evidence as on what date the Order-in-Original got actually received by the appellant. Since the date of receipt of Order-in-Original apparently is 17.07.2019 and the appeal being filed on 7th August, 2019. It is held that the appeal was very much within the period of two months from the date of receipt of Order-in-Original as is required under Section 35A of Central Excise Act. Learned Commissioner (Appeals) is held to have wrongly rejected the same being barred by time - the Commissioner (Appeals) is required to adjudicate the matter on merits. Appeal allowed by way of remand.

Summary

Issues:
- Appeal against rejection based on limitation period for filing
- Evidence of receipt of Order-in-Original by the appellant
- Compliance with Section 37C of the Central Excise Act, 1944

Analysis:
The appeal in this case challenges the rejection based on the limitation period for filing. The appellant, registered for providing a taxable service, faced a Service Tax liability based on third-party information. The Order-in-Original was issued on 18.03.2019, proposing recovery from the appellant. The appeal against this order was rejected by the Commissioner (Appeals) as being barred by time. The appellant argued that they only became aware of the order on 17.07.2019 and filed the appeal on 7th August 2019, within 21 days of receiving the order. The Commissioner (Appeals) failed to consider this argument, leading to the appeal before the Tribunal.

The Tribunal noted that while the Order-in-Original was dated 18.03.2019, there was no evidence of when the appellant received the order. The Commissioner (Appeals) mentioned that the order was dispatched by registered post and deemed delivered since it was not returned undelivered. However, the Tribunal found this to be presumptive, emphasizing the need to establish actual receipt by the appellant. The appellant presented information obtained under the RTI Act, indicating discrepancies in the delivery process, raising doubts about the actual receipt of the order.

Regarding compliance with Section 37C of the Central Excise Act, 1944, the Tribunal highlighted that the appellant's knowledge of the Order-in-Original was linked to the initiation of recovery proceedings, rather than formal receipt. The Tribunal found that the Commissioner (Appeals) erred in rejecting the appeal based on limitation, citing previous decisions emphasizing the importance of actual receipt for calculating the appeal period. The Tribunal allowed the appeal, remanding the matter for further adjudication on merits, as the rejection based on the limitation period was deemed incorrect. The reliance on a specific court decision was deemed legally untenable, necessitating a review of the case on its merits.