2019 (4) TMI 1004 - AT - Service Tax

Improper Service Leads to Dismissal Overturned

The Tribunal set aside the Commissioner's dismissal order due to the improper service of the order and directed a review of the appeal on its merits, ... Maintainability of appeal - appeal has been dismissed for the reason that it was not filed within the period stipulated in Section 85 (3) of the Finance 1994 - HELD THAT:- In the present case it is not in dispute that the order passed by the Assistant Commissioner (STC) was sent to the appellant by speed post on 16 January, 2012 and was not sent by registered post with acknowledgment due. At the relevant time there was no provision for sending the order by speed post. The Commissioner (Appeals), after noticing that the order was dispatched on 16 January, 2012 by speed post, presumed that it should have been delivered within 15 to 20 days. The order dated 9 January, 2012, passed by the Adjudicating Authority, was not sent to the appellant by either of the modes prescribed under Section 37(C) of the Central Excise Act. The deeming provision contained in Sub-Section (2) of Section 37(C) of the Central Excise Act could not, therefore, have been resorted to by the Adjudicating Authority. The Commissioner (Appeals) was, therefore, was not justified in observing that since the order was sent by speed post on 16 January 2012, it should be deemed to have been served on the appellant within 15-20 days from the date of dispatch. The appeal was required to be filed, within 3 months from the date of receipt of the decision or order of the adjudicating authority - The Commissioner (Appeals), therefore, committed an illegality in holding that the appeal had been filed not only beyond the statutory period of limitation but also beyond the extended period of limitation provided for under in Section 85(3) of the Act. Appeal allowed - decided in favor of appellant. Issues:1. Timeliness of filing the appeal as per Section 85(3) of the Finance Act.2. Proper service of the order as per Section 37(C) of the Central Excise Act.Analysis:1. The appeal challenged the dismissal order by the Commissioner (Appeals) due to a delay in filing beyond the stipulated period under Section 85(3) of the Finance Act. The Commissioner relied on a report indicating the order was dispatched via speed post on 16 January, 2012, and presumed it should have been served within 15-20 days. However, the appellant contended that the order was not served in accordance with the provision of Section 37(C) of the Central Excise Act, which deals with service of decisions. The appellant argued that the order should have been sent by registered post with acknowledgment due. The Commissioner's decision was influenced by the report and a Supreme Court precedent, leading to the dismissal of the appeal.2. The dispute also revolved around the proper service of the order, as per the requirements of Section 37(C) of the Central Excise Act. The appellant argued that the order dispatched by speed post did not comply with the prescribed mode of service. The appellant cited relevant judgments, including one by the Bombay High Court, emphasizing the necessity of serving orders by registered post with acknowledgment due. The High Court's decision highlighted the mandatory nature of this service requirement and criticized reliance on precedents where orders were sent by speed post instead of registered post. The Tribunal acknowledged the appellant's argument that the order was not served in accordance with the statutory provisions, leading to the overturning of the Commissioner's decision.In conclusion, the Tribunal set aside the Commissioner's dismissal order and directed a review of the appeal on its merits, emphasizing the importance of adhering to statutory provisions regarding the service and timeliness of filing orders in such cases.