2014 (7) TMI 406 - AT - Service Tax

Appellate Tribunal dismisses appeal for delay in filing despite waived predeposit, deeming OIO received.

The Appellate Tribunal heard an appeal despite a delay in filing, waiving the predeposit requirement. The appellant's claim of not receiving the ... Condonation of delay - Non receipt of order - Held that:- In this case by sending the order under RPAD to the last known address of the assessee, the Department has fulfilled the obligation cast on the Revenue to serve the order because the law requires only sending of the order or any decision by RPAD. In this case, the Department has gone extra mile to make efforts to deliver the order to the residence of the appellant and thereafter having failed to find him there, they have delivered it in the fathers residence. Under these circumstances, we cannot find fault with the order treating the appeal was filed beyond the condonable period. Appeal has been filed nearly one year after - Following decision of Singh Enterprises Vs. CCE, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] - Condonation denied. Issues:1. Delay in filing the appeal.2. Service of Order-in-Original (OIO) to the appellant.3. Interpretation of Section 37C of the Central Excise Act, 1944.Issue 1: Delay in filing the appealThe Commissioner(Appeals) rejected the appeal due to a delay in filing, which was not within the condonable period. The Appellate Tribunal decided to hear the appeal and waived the requirement of predeposit. The appellant claimed they did not receive the Order-in-Original (OIO) until the Range Officer requested payment of arrears. The consultant argued that the date of receipt of the OIO should be considered as the date when a copy was supplied upon request, justifying the delay in filing the appeal.Issue 2: Service of Order-in-Original (OIO) to the appellantThe OIO was sent to the appellant via Registered Post with Acknowledgement Due (RPAD) at the address provided during adjudication. When the OIO was returned undelivered, efforts were made to serve it, and eventually, a copy was delivered to the appellant's father since the appellant was not found at his residence. The consultant admitted that the father and son lived in the same town but not in the same premises. The argument shifted from the father misplacing the order copy to a claim of strained relations between the father and son. However, no affidavit or statement from either party was presented before the Commissioner(Appeals) or the Tribunal. The Tribunal noted that the Department fulfilled its obligation by sending the order via RPAD to the last known address of the assessee, going beyond the requirement by making additional efforts to deliver the order to the appellant's residence and then to the father's residence. The Tribunal concluded that the delay in filing the appeal, nearly a year later, could not be condoned based on the Supreme Court decision in Singh Enterprises Vs. CCE, Jamshedpur [2008(221) ELT 163 (SC)], leading to the rejection of the appeal.Issue 3: Interpretation of Section 37C of the Central Excise Act, 1944Section 37C of the Central Excise Act, 1944 mandates that decisions, orders, summons, or notices must be served by tendering or sending them via registered post with acknowledgment due to the intended person or their authorized agent. In this case, the Department fulfilled this obligation by sending the OIO via RPAD to the appellant's address. The Tribunal emphasized that the law only requires sending the order by RPAD, and the Department's additional efforts to deliver the order demonstrated diligence. The Tribunal's decision to reject the appeal was based on the failure to file within the condonable period, as established by legal precedents.This detailed analysis of the legal judgment addresses the issues of delay in filing the appeal, service of the Order-in-Original to the appellant, and the interpretation of Section 37C of the Central Excise Act, 1944, providing a comprehensive overview of the Tribunal's decision.