2024 (10) TMI 564 - AT - Service Tax

Rejection of appeal as time barred - non-payment of service tax for FY 2013-14 - no proof of service of Order-in-Original - violation of principles of natural justice - HELD THAT - It is found apparent on record that there is no proof of service of Order-in-Original dated 11th September, 2019 to ever have been served upon the appellant. The Show Cause Notice was also not received by the appellant as submitted. His absence before Original Adjudicating Authority, to my opinion, is the sufficient corroboration for the fact that the Show Cause Notice was not received by the appellant. Also no proof of service is placed on record by the Department. Similarly, there is no proof of service of Order-in-Original upon the appellant. In the present case, the date of receipt is 6th April, 2022. The appeal before Commissioner (Appeals) should have been filed on or before 5th June, 2022. Though the said section 85 of Finance Act has a proviso that the appeal can be presented within a further period of one month, however, the appellant has to satisfy the Commissioner (Appeals) that it was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months. No doubt the appellant has filed the appeal before Commissioner (Appeals) alongwith the application seeking the condonation of delay for filing the same beyond two months, but the same has not been considered as the one as required under the proviso to section 85 3A of the Finance Act. The findings in para 8 of the order under challenge are sufficient enough to reflect that the one month extension has been declined by Commissioner (Appeals). In the light of the facts of the present case where the appellant could not appear before the original adjudicating authority for want of receiving any processes ever served upon him except that he received recovery notice for an amount of Rs.11,27,649/-, that too, much beyond the date when this demand was confirmed. Such circumstances warrant utmost diligence on part of the appellant to expedite the filing of the appeal against the order confirming such demand. No single effort has been brought to notice by ld. Counsel about such diligence ever exercised by the appellant. Irrespective the appellant is an uneducated person but ignorance of law is not a defence available to any litigant. The delay in such circumstance, that too, solely attributed to a part time Assistant is highly insufficient to be liberal towards the appellant. The ground of limitation though has to be dealt with liberally except in case of apparent negligence on part of the litigant. As observed, present is the case of absolute negligence. There are no infirmity in the order of Commissioner (Appeals) while holding the appeal as being barred by limitation except that the reason for the purpose is modified. Irrespective of it to be an appeal filed within a period of three months, the delay beyond 60 days from the date of receipt of Order-in-Original dated 06.04.2019 is not been reasonably and sufficiently explained. Appeal dismissed.

Issues:
1. Appeal against rejection of Order-in-Appeal (O-I-A) as time-barred.
2. Allegation of non-payment of service tax for FY 2013-14.
3. Service tax recovery proposal, interest, and penalties.
4. Proof of service of notices and orders.
5. Delay in filing appeal before Commissioner (Appeals).
6. Request for condonation of delay due to fault of part-time Accountant.
7. Legal principles regarding condonation of delay in filing appeals.

Analysis:
1. The appeal was filed to challenge the rejection of the Order-in-Appeal (O-I-A) as time-barred. The appellant was alleged to have not paid service tax for FY 2013-14. The appellant failed to provide any documents to show eligibility for exemption from service tax. The income tax statements revealed earnings of Rs.91,23,380/- during the said financial year, leading to a proposed recovery of Rs.11,27,649/- along with interest and penalties.

2. The appellant contended that they did not receive the Order-in-Original and Show Cause Notice, which hindered their ability to respond or appear before the Adjudicating Authority. The appellant claimed to have received the recovery letter much later, leading to a delayed filing of the appeal before the Commissioner (Appeals). The appellant sought condonation of the delay, citing reasons beyond their control.

3. The Department argued that all notices and orders were duly served at the appellant's address. They highlighted the lack of proof of non-delivery of the notices. The appellant's delay in filing the appeal was emphasized, and the Department opposed any leniency due to the appellant's alleged negligence.

4. The Tribunal noted the absence of proof of service of the Order-in-Original and Show Cause Notice to the appellant. However, the appellant received a copy of the Order-in-Original through an RTI application. The Tribunal cited the Finance Act's provisions regarding the time limit for filing appeals and the conditions for condonation of delay.

5. The appellant attributed the delay in filing the appeal to the part-time Accountant's fault. The Tribunal emphasized the appellant's responsibility to diligently pursue legal matters, regardless of their educational background. The Tribunal referred to legal precedents emphasizing the need for sufficient cause to justify delays in filing appeals.

6. Citing relevant case law, the Tribunal concluded that the delay in filing the appeal was not adequately explained beyond the permissible period. Despite the appellant's arguments, the Tribunal upheld the decision of the Commissioner (Appeals) to dismiss the appeal as time-barred. The appeal was ultimately dismissed by the Tribunal.

This detailed analysis covers the issues raised in the legal judgment, providing a comprehensive understanding of the case and the Tribunal's decision.

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