2022 (7) TMI 655 - AT - Service Tax

Service of order - Time Limitation - case of the Appellant is that they never received the Order-in-Original dated 10.08.2016, which was dispatched on 18.08.2016, certified copy of which was received by the Appellant on 27.04.2017 - HELD THAT - The Appellant s claim that they never received the Order-in-Original dated 10.08.2016 through the postal delivery system as claimed by the Senior Superintendent of Post Offices, Meghalaya Division vide letter dated 11.10.2017 and it was only when the Superintendent (Adjudication), Central Excise Service Tax, Agartala issued a certified copy to the Appellant on 27.04.2017, they received the copy of the Order-in-Original and filed the Appeal before the First Appellate Authority. It would not be out of place to mention that the Appellant is not going to gain in adopting the delay tactics in filing the Appeal as has been observed by the Ld.Commissioner(Appeals). It is observed from the records that against the adjudicated demand of Rs.11,36,469/-, the Appellants have already paid Rs.10,19,283/-, which has also been appropriated in the Order-in-Original. The matter is remanded to the Ld.Commissioner(Appeals) to decide the Appeal on merits without going into the aspect of limitation - Appeal is allowed by way of remand to the Ld.Commissioner(Appeals).

Summary

Issues:
1. Appeal hit by limitation - Delay in filing appeal.
2. Non-receipt of Order-in-Original by the Appellant.
3. RTI application regarding non-delivery of the order.
4. Applicability of the decision of Hon'ble Madras High Court in a similar case.

Issue 1: Appeal hit by limitation - Delay in filing appeal:
The main contention of the Appellant was that the Ld.Commissioner(Appeals) erred in holding the appeal as time-barred. The Appellant filed the appeal within the statutory period after receiving the certified copy of the Order-in-Original. The Ld.Commissioner(Appeals) observed that the original order was dispatched on 18.08.2016 and delivered on 30.08.2016. Despite the delay of 220 days, the Appellant argued that they never received the original order until they obtained a certified copy on 27.04.2017. The Appellant had already paid a significant portion of the adjudicated demand, indicating their willingness to resolve the matter.

Issue 2: Non-receipt of Order-in-Original by the Appellant:
The Appellant claimed that they did not receive the Order-in-Original dated 10.08.2016 through the postal delivery system, as confirmed by the Senior Superintendent of Post Offices. The delay in filing the appeal was attributed to the non-receipt of the original order until the certified copy was received. The Appellant's argument was supported by the RTI response stating that details of the delivery of the article were not available due to the prescribed preservation period of speed post documents.

Issue 3: RTI application regarding non-delivery of the order:
After the Ld.Commissioner(Appeals) rejected the appeal as time-barred, the Appellant filed an RTI application to ascertain details about the non-delivery of the order. The response received indicated that the details of the delivery were not available due to the preservation period of speed post documents being six months. This further supported the Appellant's claim of non-receipt of the original order within the stipulated time frame.

Issue 4: Applicability of the decision of Hon'ble Madras High Court in a similar case:
The Appellant relied on a decision of the Hon'ble Madras High Court in a similar case to support their argument. The case highlighted issues of non-receipt of the order-in-appeal, subsequent filing of the appeal after obtaining a certified copy, and the Department's contention of deemed receipt based on registered post delivery. The Court in the referenced case emphasized the importance of considering contentious issues on merits and reasons for delay, especially when a significant portion of the tax demand had been paid. The judgment influenced the decision to remand the matter to the Ld.Commissioner(Appeals) for a fresh decision on merits without focusing on the aspect of limitation.

In conclusion, the Appellate Tribunal decided to allow the appeal by way of remand to the Ld.Commissioner(Appeals) to decide the case on merits without considering the limitation aspect. The judgment was influenced by the principles laid down in a similar case by the Hon'ble Madras High Court, emphasizing the importance of addressing contentious issues and providing a reasonable opportunity of hearing to the Appellant. Both parties were granted the liberty to present evidence in their favor, keeping all issues open for further consideration.