2019 (6) TMI 768 - AT - Service Tax

Tribunal overturns time-barred appeal dismissal, stresses procedural compliance and factual verification

M/s. Mohan Agarwal Construction Company Versus Commissioner, Customs & Central Excise & Service Tax, Gwalior

M/s. Mohan Agarwal Construction Company Versus Commissioner, Customs & Central Excise & Service Tax, Gwalior - TMI Issues:1. Appeal against dismissal of appeal for being time-barred under Section 85 (3)(A) of the Finance Act, 1994.2. Interpretation of Section 85 of the Finance Act regarding the timeline for filing appeals.3. Examination of the service of decisions and orders under Section 37C of the Central Excise Act in relation to the present case.Analysis:1. The appeal was filed against the dismissal of the appellant's appeal by the Commissioner (Appeals) due to being filed beyond the stipulated period under Section 85 (3)(A) of the Finance Act, 1994. The appellant claimed to have received the order on 14 April, 2015, while the order was dated 27 February, 2015. The Commissioner (Appeals) dismissed the appeal as time-barred, noting that the appeal should have been filed by 7 May, 2015, which was 63 days after the supposed receipt of the order. However, the Commissioner did not seek evidence of the order's delivery, leading to a flawed assumption regarding the timeline for filing the appeal.2. Section 85 of the Finance Act outlines the process for filing appeals against decisions or orders of Adjudicating Authorities. Sub-section (3A) specifies a two-month timeline for filing appeals, with a provision for a further one-month extension if sufficient cause is shown. In this case, the appellant's claim of receiving the order on 14 April, 2015, was crucial in determining the filing deadline. The Tribunal criticized the Commissioner for assuming the order's receipt within a week of issuance without verifying the mode or date of service, highlighting the importance of adhering to procedural requirements when dismissing appeals as time-barred.3. The judgment delves into Section 37C of the Central Excise Act, which governs the service of decisions, orders, and summons. It mandates specific methods of service, such as registered post with acknowledgment due or courier, to ensure proper communication of orders. The Tribunal noted the absence of evidence regarding the order's service to the appellant, emphasizing the Commissioner's error in assuming timely receipt without verifying compliance with Section 37C. The Tribunal directed the Adjudicating Authority to investigate and report on the dispatch and service of the order to rectify the procedural lapse and allow the appeal accordingly.In conclusion, the Tribunal set aside the Commissioner's order, highlighting the necessity of following prescribed procedures for serving orders and determining timelines for filing appeals under the relevant statutory provisions. The judgment underscores the importance of procedural compliance and factual verification in adjudicating appeals related to service tax matters.