2016 (1) TMI 824 - AT - Service Tax

Appeal deemed time-barred due to service dispute under Central Excise Act.

M/s. Hindustan Institute of Aeronautics Versus C.C.E. &S. T., Bhopal

The Tribunal found the appeal time-barred as it was filed after the prescribed period. The dispute centered on the service of the primary adjudication ... Delay in filing of appeal before Commissioner (Appeals) - Date of service of order in original - Revenue argued that there was presumed service when order was sent by Registered Post with Acknowledgement Due (RPAD) as per Section 37C(1)(a) ibid. Revenue also argued that amendment to Section 37C ibid to include speed post with proof of delivery as a mode of service with effect from 10.05.2013 was clarificatory in nature and therefore had retrospective applicability. - Held that:- As during the relevant period, the primary adjudicating order was required to be sent by RPAD, sending it by speed post would not fulfil the requirement of the said section. The amended provision of Section 37C(1)(a) ibid effective from 10.05.2013 allows sending of the orders by “speed post with proof of delivery”. It is admitted by Revenue that in this case, it has no proof of delivery of the primary adjudication order. It is not in dispute that the appeal was filed within the stipulated period after the appellant obtained copy of the primary adjudication order. - In the light of the foregoing analysis, we waive the requirement of pre-deposit and allow the appeal by way of remand to the Commissioner (Appeals) with the direction to take up the appeal along with stay application and decide the same on merit. Issues:1. Appeal filed after prescribed period - Time-barred2. Contention on service of primary adjudication order3. Interpretation of Section 37C of Central Excise Act, 19444. Comparison between speed post and registered post5. Retrospective applicability of amendment to Section 37C6. Validity of judgments supporting each party's contentions7. Merger of High Court judgment with Supreme Court orderAnalysis:1. The appeal was filed after the prescribed period, leading to it being considered time-barred. The primary adjudication order was claimed to have been sent by speed post, which the appellant argued was not received within the stipulated time. The appellant cited judgments supporting its contention, emphasizing that service by speed post did not comply with Section 37C of the Central Excise Act, 1944.2. The Departmental Representative argued for presumed service when the order was sent by Registered Post with Acknowledgement Due (RPAD), citing an amendment to Section 37C to include speed post as a mode of service. However, the Revenue lacked evidence of delivery of the impugned order, despite having proof of dispatch by speed post. Judgments were presented to support this stance, highlighting the presumed equivalence of speed post and registered post.3. The Tribunal examined the provisions of Section 37C(1)(a) of the Central Excise Act, 1944, which mandated the primary adjudication order to be sent by RPAD. Previous High Court judgments emphasized that communication by speed post did not align with this requirement before a specific date. The Tribunal referenced relevant cases to support its interpretation of the service mode specified in the Act.4. The comparison between speed post and registered post was crucial in determining the validity of the service of the adjudication order. While certain judgments equated speed post with registered post, they did not establish speed post as equivalent to RPAD, which was the specific requirement during the relevant period.5. The retrospective applicability of the amendment to Section 37C was debated, with arguments focusing on whether the introduction of speed post as a valid mode of service was clarificatory in nature. The Tribunal analyzed relevant judgments to ascertain the implications of this amendment on the case at hand.6. The validity and relevance of judgments cited by both parties were thoroughly considered. Each judgment's applicability to the present case and its alignment with the statutory provisions were assessed to determine their persuasive value in the context of the dispute over the timeliness of the appeal.7. The issue of the Orissa High Court judgment and its purported affirmation by the Supreme Court was examined. The Tribunal clarified that the Supreme Court's dismissal of the Special Leave Petition did not merge the High Court judgment with its orders, emphasizing the continued vitality of the Orissa High Court judgment as a High Court order.In conclusion, the Tribunal waived the pre-deposit requirement and remanded the appeal to the Commissioner (Appeals) for a merit-based decision, considering the detailed analysis of the issues surrounding the timeliness of the appeal and the service of the primary adjudication order.