2016 (12) TMI 1129 - AT - Service Tax

Revenue's appeal allowed, Order-in-Appeal set aside due to appeal timeliness, remanded for decision.

The Tribunal allowed the Revenue's appeal, setting aside the Order-in-Appeal that deemed the appeal time-barred. It was found that the appeal was filed ... Time-barred appeal - date of receipt - service of order on reviewing authority - Central Excise review procedure - authority for review - remand for fresh adjudicationTime-barred appeal - date of receipt - service of order on reviewing authority - Central Excise review procedure - authority for review - Whether the appeal filed by the Revenue before the First Appellate Authority was time barred. - HELD THAT: - The Tribunal examined the review procedure under Central Excise and held that the proper officer for review is the Jurisdictional Commissioner (or the RRA section functioning under the Commissioner), not subordinate officers such as an Assistant Commissioner or Range Superintendent whose offices are distinct and who are not obliged to forward the order to the Reviewing Authority. An inquiry dated 07.06.2012 found that the Order in Original dated 29.03.2010 and its corrigendum dated 10.05.2010 were not received in the RRA section or the CCE Cell of the Reviewing Authority. Given those findings and the recorded practice when the regular Commissioner was unavailable, the Tribunal accepted 18.11.2011 as the date on which the Reviewing Authority received the Order in Original. Counting from that date, the appeal filed on 02.02.2012 fell within the prescribed three month period and therefore was not time barred. [Paras 4]The appeal before the First Appellate Authority was not time barred as it was filed within three months of the date of receipt of the order by the Reviewing Authority.Remand for fresh adjudication - Relief to be granted once the Tribunal found the appeal to be timely. - HELD THAT: - Having concluded that the departmental appeal was filed in time, the Tribunal set aside the First Appellate Authority's order which had rejected the appeal as time barred and directed that the appeal be restored to its original number. The Tribunal did not decide the substantive merits of the departmental demand; instead it remanded the matter to the First Appellate Authority for disposal on merits after restoration. [Paras 5]Order in Appeal dated 20.05.2013 is set aside; the appeal is restored and remitted to the First Appellate Authority to be decided on merits.Final Conclusion: The Tribunal held that the departmental appeal was timely filed because the Reviewing Authority received the impugned order on 18.11.2011; it set aside the First Appellate Authority's order rejecting the appeal as time barred, restored the appeal to its original number and remanded the matter for fresh adjudication on merits. Issues: Appeal filed by Revenue against rejection of appeal as time-barred due to delay of 18 months.Analysis:1. The appeal was filed by the Revenue against the Order-in-Appeal dated 20.05.2013 passed by the Commissioner (Appeals), Customs, Central Excise & Service Tax, Patna, which rejected the appeal as time-barred due to an 18-month delay. The First Appellate Authority held that the appeal was filed after the prescribed time limit.2. Despite notice, no one appeared on behalf of the respondent during the proceedings.3. The Revenue submitted that the Order-in-Original (OIO) dated 29.03.2010 and its corrigendum dated 10.05.2010 were not received by the Commissioner of Central Excise and Service Tax, Patna. An inquiry conducted by an Additional Commissioner of Central Excise confirmed that neither the OIO nor its corrigendum was received by the Reviewing Authority/RRA branch. However, the First Appellate Authority still considered the appeal time-barred based on the receipt of the documents by the Assistant Commissioner and Range Superintendent.4. The Tribunal observed that under the Central Excise Review procedure, the proper officer for reviewing orders passed by the Additional Commissioner is the Jurisdictional Commissioner of Central Excise and Service Tax, in this case, the Commissioner of Central Excise and Service Tax, Patna. The inquiry report highlighted that the OIO and its corrigendum were not received by the Reviewing Authority or the CCE Cell, indicating a systemic issue in document transmission. As per the report, the date of receipt by the Reviewing Authority should be considered as 18.11.2011, making the appeal filed on 02.02.2012 within the prescribed time limit.5. Consequently, the Tribunal set aside the Order-in-Appeal dated 20.05.2013, ruling that the appeal was filed within the stipulated time. The appeal by the Revenue was allowed for remand to the First Appellate Authority to decide the issue on merits after restoring the appeal to its original number.