2015 (1) TMI 188 - AT - Service Tax

Tribunal allows Condonation of Delay in Appeals due to invalid service, directs pre-deposit & waiver

M/s BPL-BBC JOINT VENTURE Versus COMMISSIONER OF SERVICE TAX, MUMBAI II

The Tribunal allowed the applications for Condonation of Delay in filing appeals as the service of impugned orders through speed post was deemed invalid. ... Waiver of pre deposit - Condonation of delay - Delay in receipt of order - Held that:- On perusal of the COD applications we are of the view that the impugned orders were sent through “Speed Post” which is not a proper service as held by the Hon'ble Bombay High Court in the case of Amidev Agro Care Pvt. Ltd. (supra). As also the Revenue has failed to produce an acknowledgement receipt of the said order therefore, we find that the service of the impugned orders by way of “Speed Post” is not a valid service. Accordingly, the applications for COD in filing the appeals are allowed. Matter is squarely covered by the decision of M/s Reliance Michigan (JV) - [2013 (7) TMI 236 - CESTAT MUMBAI] wherein for the same activity this Tribunal has confirmed the demand against the assessee, therefore, the revenue is having the case on merits. - applicants have failed to make out a case for complete waiver of pre-deposit. Therefore, the applicants are directed to make a pre-deposit the service tax as demanded in the show-cause notices - Partial stay granted. Issues:1. Condonation of Delay in filing appeals.2. Validity of service of impugned orders.3. Receipt of show-cause notices.4. Complete waiver of pre-deposit.Condonation of Delay in filing appeals:The applicants sought waiver of pre-deposit of confirmed demands and filed applications for Condonation of Delay in filing appeals. The applicants claimed they never received show-cause notices or the impugned orders until a later date, which led to a delay in filing the appeals. The learned Counsel argued that as the applicants did not receive the notices, the proceedings against them are not sustainable. On the contrary, the Revenue contended that the notices were served through registered post and speed post, and the applicants were duly informed. The Tribunal found that the service through speed post was not valid, as established by a previous Bombay High Court ruling. As the Revenue failed to produce an acknowledgment receipt for the orders, the Tribunal allowed the applications for Condonation of Delay.Validity of service of impugned orders:The dispute revolved around the validity of the service of impugned orders. The applicants claimed they did not receive the orders, while the Revenue argued that the notices were served correctly. The Revenue provided evidence that the show-cause notices were sent through registered post and personally delivered to the applicants. The Tribunal noted the absence of an acknowledgment receipt for the registered post notice but accepted the evidence of personal delivery for the remaining notices. The Tribunal concluded that the service of impugned orders through speed post was not valid, and the applicants were indeed served the show-cause notices.Receipt of show-cause notices:The applicants contended that they did not receive the show-cause notices, leading to delays in filing appeals. However, the Revenue presented evidence of sending the notices through registered post and personal delivery. The Tribunal acknowledged the lack of acknowledgment for the registered post notice but accepted the evidence of personal delivery for the other notices. The Tribunal referenced a previous decision involving a similar activity where the demand was confirmed, indicating that the Revenue had a strong case on merits. Consequently, the Tribunal ruled that the applicants failed to establish a case for complete waiver of pre-deposit.Complete waiver of pre-deposit:After considering the arguments and evidence presented by both parties, the Tribunal directed the applicants to make a pre-deposit of the demanded service tax within eight weeks. Upon this deposit, the balance amount of service tax, interest, and penalties would be waived during the appeal's pendency. The applicants were instructed to report compliance by a specified date. The Tribunal's decision was pronounced in an open court session on a particular date.