2009 (6) TMI 664 - AT - Service Tax

Appeals granted due to service date evidence lacking, remanded for substantive consideration.

The Tribunal found in favor of the appellants, concluding that the impugned order was invalid due to lack of evidence supporting earlier service dates. ... Stay Application - Provisions comprised under Section 37-C of the Central Excise Act, 1944 - Limitation - It is not in dispute that the letter nowhere stated that the signatures, which were found on the copies, were of the persons employed in the appellants’ company or that the persons who had signed and received the copies had done so on behalf of the company - Indeed, the Assistant Commissioner could not have stated so because the endorsement neither discloses the same nor it is the case of the respondent that the author of the letter dated 11th June, 2007 had himself served the copy of the order upon the appellants - He had no personal knowledge about the actual service of the copy of the order upon the appellants - The records on the face of it did not disclose anything more than signatures of some person on the copies of the orders - There was no cogent material available before the Commissioner (Appeals) to hold that the copies of the orders were really served upon the appellants on 2nd August, 2000 and 16th September, 2000 - Hence, the records that the copies were received for the first time on 19th July, 2006 and the appeals were filed on 7th September, 2006, they were filed within the period of limitation and, therefore, it was necessary for the Commissioner (Appeals) to deal with the appeals on merits - Decided in favour of assessee. Issues Involved:1. Validity of the impugned order passed by the Commissioner (Appeals) on 31st October, 2008.2. Compliance with the statutory provisions under Section 37-C of the Central Excise Act, 1944 regarding the service of the order.3. Determination of the actual date of receipt of the order-in-original by the appellants.4. Limitation period for filing appeals.Issue-wise Detailed Analysis:1. Validity of the Impugned Order:The appellants challenged the impugned common order passed by the Commissioner (Appeals) on 31st October, 2008, arguing that it was contrary to the materials on record and in contravention of statutory provisions under Section 37-C of the Central Excise Act, 1944.2. Compliance with Section 37-C of the Central Excise Act, 1944:The case revolves around the compliance with Section 37-C, which outlines the procedure for serving decisions, orders, summons, or notices. The section mandates that service should be made by tendering the document or sending it by registered post with acknowledgment due, or by affixing a copy to a conspicuous part of the factory or business premises if the first method fails. The appellants contended that the service of the order was not made in accordance with these provisions, as the endorsements on the copy of the order did not disclose the identity of the person receiving it on behalf of the company.3. Determination of the Actual Date of Receipt:The appellants asserted that they received the copy of the order for the first time on 19th July, 2006, supported by their affidavit and preceding correspondence with the Department. The Commissioner (Appeals) based his finding on a letter dated 11th June, 2007, from the Assistant Commissioner, which stated that the orders were served on 2nd August, 2000, and 16th September, 2000. However, the Tribunal noted that the endorsements on the orders did not indicate that they were received by an authorized representative of the company. The Tribunal found no cogent material to support the claim that the orders were served on the earlier dates and accepted the appellants' assertion of receiving the orders on 19th July, 2006.4. Limitation Period for Filing Appeals:Given that the appellants received the orders on 19th July, 2006, and filed the appeals on 7th September, 2006, the Tribunal held that the appeals were filed within the limitation period. Consequently, the Commissioner (Appeals) was required to deal with the appeals on their merits.Conclusion:The Tribunal concluded that the impugned order could not be sustained due to the lack of evidence supporting the earlier service dates. The matter was remanded to the Commissioner (Appeals) for a decision on the merits of the appeals. The appeals were disposed of accordingly.