2014 (12) TMI 1140 - AT - Service Tax

Tribunal overturns dismissal of appeals due to improper communication, remands case for review

The Tribunal allowed the appeal, setting aside the order dismissing the appeals as time-barred. It held that the orders were not communicated to the ... Condonation of delay - Delay in receipt of order - Held that:- It is seen that though in respect of the order-in-original dated 15.02.2008, the department’s plea is that the same had been delivered to Shri Ramesh Kumar of the appellant company on 26.03.2009, no evidence in this regard, has been brought on record. Similarly, in respect of the order-in-original dated 13.03.2009, the department s plea is that the same was dispatched to the appellant by speed post on 26.07.2012. However, under Section 37 C of the Central Excise Act, 1944, the permitted mode of communication of the adjudication order is registered post with acknowledgement due (RPAD) and since the order was not dispatched by RPAD, it cannot be deemed to have been served on the appellant. Both these orders have been received by the appellant on 2.3.2013 and, therefore, the appeals have to be treated as having been filed in time and as such, the impugned order dismissing the appeals as time barred, without going into the merits of the case, is not correct. The impugned order, therefore, is set aside and both these matters are remanded to the Commissioner (Appeals) for decision on merits. - Delay condoned. Issues:1. Appeal against dismissal of appeals by Commissioner (Appeals) as time-barred without considering merits.2. Communication of orders-in-original to the appellant.3. Delay in filing appeals.Analysis:1. The appeals were filed against the order-in-appeal dismissing the appellant's appeals as time-barred without assessing the merits of the case. The Tribunal admitted one appeal and stayed recovery due to payment made by the appellant. Another stay application was pending for decision. The appellant argued that the appeals were filed within time as they received the orders late. The Commissioner (Appeals) did not condone the delay due to the appeals being filed far beyond the 30-day period.2. The appellant claimed that they did not receive the orders-in-original on time. The department argued that the orders were communicated to the appellant earlier. The department mentioned sending the orders by speed post and delivering them to an authorized person on behalf of the appellant. However, no evidence was provided regarding the delivery to the authorized person. The Tribunal noted that the orders were not dispatched through the permitted mode of communication, which is registered post with acknowledgment due.3. The Tribunal held that the orders were received by the appellant on a later date, contrary to the department's claim. Citing a relevant case law, the Tribunal emphasized that sending orders by speed post does not comply with the legal provisions. Therefore, the appeals were considered to be filed within time, and the impugned order was set aside. The matters were remanded to the Commissioner (Appeals) for a decision on merits, and the pending stay application was disposed of.