Successful appeal due to late service of notice, not time-barred appeal filed within 2 months

The appeal was successful as the Member (Judicial) found that the appellant had not been served with the Show Cause Notice or the Order-in-Original until after recovery proceedings had commenced. The Member determined that the appeal, filed within two months of receiving the Order-in-Original, was not time-barred. Emphasizing the distinction between dispatching and actual service of orders, the Member set aside the Commissioner (Appeals)' decision and directed a remand for the appeal to be considered on its merits.

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Issues:
- Appeal against dismissal based on time limitation

Analysis:
The appeal in question was filed to challenge the Order-in-Appeal No. 107/ST dated 5.3.2020, which dismissed the appellant's appeal against the Order in Original No. 69/2018 dated 16.11.2018 on the grounds of being time-barred. The appellant, registered for providing man-power recruitment/supply agency service, argued that they did not receive the Show Cause Notice until after the Order-in-Original was passed against them. The appellant claimed that they only became aware of the order when recovery proceedings were initiated, and they subsequently filed an appeal within two months of receiving the copy of the Order-in-Original. The appellant contended that the appeal should not have been rejected as time-barred. The Department, represented by the learned Authorized Representative, emphasized the findings in the Order-in-Appeal, which were based on a report from the Jurisdictional Assistant Commissioner indicating the dispatch of the Order-in-Original on the date of the order itself.

Upon hearing both parties and examining the record, the Member (Judicial) noted that the appellant did not appear before the Original Adjudicating Authority despite being afforded three opportunities for a hearing. However, it was revealed that the appellant had not been served with even a copy of the Show Cause Notice, which led to their non-appearance and lack of knowledge about the Order-in-Original until recovery proceedings commenced. The affidavit supporting this claim was presented. The Member also considered a letter from the Department dated 20th February, 2019, responding to the appellant's request for a copy of the Order-in-Original, which confirmed that the copy was provided on that date. The Member found no reason to doubt the appellant's deposition, especially since the report relied upon by the Commissioner (Appeals) did not provide concrete evidence of the Order-in-Original being served on the appellant.

The Member emphasized that dispatching an order does not equate to service, citing statutory provisions under the Central Excise Act, 1944. Referring to a decision by the Hon'ble High Court of Madras, it was highlighted that it is essential for the appellate authority to verify whether the order was received by the assessee. The Member also referenced a Tribunal decision from Chennai, emphasizing that the appellant should not suffer for a fault not on their part. As no acknowledgment receipt was received by the Revenue, the Member concluded that the Original Adjudication order was not received by the appellant before 20th February, 2019. Therefore, the appeal filed on 18th April, 2019, was within the required two-month period, and the Commissioner (Appeals) erred in rejecting it as time-barred. Consequently, the order was set aside, and the Commissioner (Appeal) was directed to decide the matter on its merits, allowing the appeal by way of remand.

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