9911796707
TMI Blog2025 (3) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence of dispatch and the contention of the Department that such dispatch was not returned back by the Post office. The learned Commissioner have erred in making the presumption in the absence of proof of delivery not produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through Registered Post or Speed Post to the person for whom it was entitled or his authorized agent with acknowledgement due as proof of delivery. Thus, it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per the Section 37C(1)(a) of the Act. In absence of proof of delivery of order dated 23.12.2021, the same cannot be deemed as s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the Appellant is an Internet Installation Service provider to customers of the companies providing Broadband Access Services. During the course of providing the services, Cable is being laid down and Router is installed on customer's premises. The cost of the Router and Cable/Wire etc., has been charged from the customers through bills alongwith installation charges. The demand of Rs.2,49,718/- has been raised on the basis of third party information received from the Income Tax Department for the financial year 2015-16 wherein the Appellant has shown the gross receipts as under:- Income Amount By Installation Charges Received 6,72,800/- By Sale of Equipments 10,49,395/- By Commission Received 1,600/- Total 17,23,795 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with Section 142 & 174 of CGST Act, 2017 for not furnishing the information/not producing the documents/not appearing when issued with a summon before a Central Excise officer. (vi) Penalty should not be imposed upon them under Section 77(1)(d) of the Finance Act, 1994 read with Section 142 & 174 of CGST Act, 2017 for fails to pay the Service Tax electronically. (vii) Penalty should not be imposed upon them under Section 77(2) of the Act read with Section 142 & 174 of CGST Act, 2017 for not filing of statutory Service Tax Returns for the Financial Year 2015-16." 5. The Adjudicating Authority records that the party vide letter dated 21.12.2020 submitted following documents:- 1. Form 26AS for the Financial Year 2015-16. 2. I.T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant that the learned Commissioner (Appeals) failed to appreciate that the Range Superintendent vide letter dated 19.07.2022 informed the Appellant that the Order-in-Original was sent by Post on 31.12.2021 and the said order was never returned back as undelivered. 9. The learned Consultant appearing on behalf of the Appellant vehemently argued that the learned Commissioner (Appeals) has failed to appreciate that the Department has not brought any record evidencing that the O-I-O was dispatched at proper address of the Appellant and was delivered to the Appellant. It is his submission that requirements of Section 37C(1) of Central Excise Act, 1944, in case of service of speed post as proof of delivery has not been brought on record, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le Rajasthan High Court in the case of R. P. Casting Pvt. Ltd. (Supra) and also by the Hon'ble Gujarat High Court in the case of Regent Overseas Pvt. Ltd. (Supra) and also by the Hon'ble Supreme Court in the case of Saral Wire Craft vs. CCE & ST 2015 (322) E.L.T. 192 (S.C.). In absence of such proof of delivery, it is held that the presumption is not sustainable and accordingly I hold that the appeal of the Appellant cannot be held as barred by limitation. 11. I find that the facts of the present case are squarely covered by the aforesaid decision of the Hon'ble High Court and the Hon'ble Supreme Court. I hereby set aside the impugned order and find it appropriate to remand the matter to the learned Commissioner (Appeals) to decide the app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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