2023 (1) TMI 805 - AT - Service Tax

Condonation of delay in filing appeal - whether the Appeal was field beyond the statutory period of 60(sixty) days, but within the condonable period of 30(thirty) days? - HELD THAT - The Order-in-Original dated 24.04.2019 was communicated to the Appellants on 07.05.2019 and the Appeal before the First Appellate Authority was required to be filed on or before 07.07.2019. But the Appeal was filed on 02.08.2019. Accordingly the Appeal was field beyond the statutory period of 60(sixty) days, but within the condonable period of 30(thirty) days. The Appellant inadvertently mentioned the date of communication of the Order-in- Original in the Appeal Memo as 26.04.2019 instead of the actual date of receipt of the Order-in-Original. Accordingly, the Ld.Commissioner(Appeals) considering the date as 26.04.2019, dismissed the Appeal before him. The correct date of communication of the Order-in-Original is on record i.e. 07.05.2019, it is clear that the Appeal though filed beyond the statutory period, but was field within the condonable period. Accordingly, the delay is condoned in filing the Appeals before the First Appellate Authority and find it appropriate to remand the matter to the Ld.Commissioner(Appeals) to decide the Appeals on merits without further visiting the aspect of limitation. The Ld.Advocate for the Appellant has submitted some documents which shows that the Department had taken coercive steps for realization of demand. However, subsequent to the order of the Tribunal dated 11.01.2023, a letter was issued on 13.01.2023 to all the banks of the Appellant that the order for freeze may be treated as withdrawn w.e.f. 13.01.2023 onwards. It cannot be apprehended what developments took place over the weekend that again on Monday itself i.e. on 16.01.2023 there was a fresh letter to all the banks requesting to put the letter of defreeze on hold and not to disburse any amount from the accounts until another confirmation is issued to them. These actions are beyond comprehension and cannot be appreciated since the Appeals were pending before the Tribunal and it is observed from the Order-in-Original that substantial amount has already been paid by the assessee and also appropriated in the Order-in-Original. The impugned orders are set aside and the Appeals filed by the Appellants are allowed by way of remand to Ld.Commissioner(Appeals).

Issues:
1. Timeliness of filing the Appeal before the First Appellate Authority.
2. Communication of the Order-in-Original and its impact on the statutory period.
3. Coercive steps taken by the Department for realization of demand.
4. Actions of the Department affecting the business transactions of the assessee.
5. Decision on the Appeals and remand to the Ld. Commissioner (Appeals).

Timeliness of filing the Appeal before the First Appellate Authority:
The Appellants filed a Miscellaneous Application for early hearing of the Appeals, which was granted. The Appeal was filed beyond the statutory period of 60 days but within the condonable period of 30 days due to an inadvertent error in mentioning the date of communication of the Order-in-Original. The correct date of communication was clarified later, leading to the condonation of the delay in filing the Appeals before the First Appellate Authority.

Communication of the Order-in-Original and its impact on the statutory period:
The Order-in-Original was communicated to the Appellants on 07.05.2019, contrary to the date mentioned in the Appeal Memo. The correct communication date established that the Appeal was filed within the condonable period, warranting the condonation of the delay. The matter was remanded to the Ld. Commissioner (Appeals) to decide the Appeals on merits without revisiting the limitation aspect.

Coercive steps taken by the Department for realization of demand:
The Department had taken coercive steps for demand realization, which were later withdrawn following a Tribunal order. However, contradictory actions were observed, with a subsequent letter requesting banks to hold the defreeze order. These actions were criticized as unnecessary, especially when substantial amounts had already been paid by the assessee and appropriated in the Order-in-Original, impacting the assessee's business transactions.

Actions of the Department affecting the business transactions of the assessee:
The Tribunal set aside the impugned orders, allowing the Appeals by remanding them to the Ld. Commissioner (Appeals). The coercive actions of the Department, including freezing bank accounts, were deemed unjustified, particularly when the Appeals were pending, and payments had been made by the assessee. The Department's actions were considered unreasonable and detrimental to the assessee's ability to conduct regular business transactions.

Decision on the Appeals and remand to the Ld. Commissioner (Appeals):
The Appeals filed by the Appellants were allowed, and the impugned orders were set aside. The matter was remanded to the Ld. Commissioner (Appeals) for a decision on merits, with a direction to grant a reasonable opportunity of hearing to the Appellant. Both parties were permitted to present evidence in their favor, and all issues were kept open for further consideration. The order was directed to be issued "Dasti."

This detailed analysis of the judgment covers the issues related to timeliness of filing the appeal, communication of the Order-in-Original, coercive steps by the Department, impact on business transactions, and the final decision on the appeals.

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