2025 (3) TMI 120 - AT - Service Tax

Revenue fails to prove delivery of order, appeal wrongly rejected on limitation grounds under Section 37C(1)(a)

Shri Gaurav Sahu Versus Commissioner of Central Excise & Service Tax, Lucknow

CESTAT Allahabad allowed the appeal by remand after finding that the Commissioner (Appeals) erroneously rejected the appeal on limitation grounds. The ... Condonation of delay in filing appeal - appeal rejected on the grounds of limitation holding that the appeal filed on 16.08.2022 is beyond permissible condonable time limit of one month - HELD THAT:- The impugned order has been passed on the presumption by the learned Commissioner (Appeals) that the Order-in-Original dated 23.12.2021 was served on the Appellant, on the basis of the evidence of dispatch and the contention of the Department that such dispatch was not returned back by the Post office. The learned Commissioner have erred in making the presumption in the absence of proof of delivery not produced by the Department. During the relevant time as per the provisions of Section 37C(1)(a), any order passed under the Act was to be served through Registered Post or Speed Post to the person for whom it was entitled or his authorized agent with acknowledgement due as proof of delivery. Thus, it was incumbent upon the Revenue to produce evidence of delivery or service which is the mandate as per the Section 37C(1)(a) of the Act. In absence of proof of delivery of order dated 23.12.2021, the same cannot be deemed as served on the Appellant as has been held by the Hon’ble Rajasthan High Court in the case of R. P. Casting Pvt. Ltd. [2016 (6) TMI 996 - RAJASTHAN HIGH COURT]. Conclusion - In absence of proof of delivery, it is held that the presumption is not sustainable and accordingly the appeal of the Appellant cannot be held as barred by limitation. It is deemed appropriate to remand the matter to the learned Commissioner (Appeals) to decide the appeal on merits after giving proper opportunity to the Appellant without further visiting the aspect of limitation. Appeal allowed by way of remand. The Appellate Tribunal considered a case where the Appellant challenged an Order-in-Appeal rejecting their appeal against a demand raised for service tax. The main issue revolved around the timeliness of the appeal filing and whether it was beyond the condonable time limit of one month. The Appellant, an Internet Installation Service provider, faced a demand based on third-party information regarding their gross receipts for the financial year 2015-16. The Adjudicating Authority issued a show cause notice proposing various demands and penalties. The Appellant submitted documents but failed to appear for multiple personal hearings, leading to an ex parte order confirming the demand and penalties. The Commissioner (Appeals) rejected the appeal as time-barred, considering the date of dispatch as the date of delivery without concrete evidence of delivery. The Appellant argued that the presumption of service without proof of delivery was incorrect, citing relevant legal provisions and case law.The Tribunal found that the Commissioner (Appeals) erred in presuming service without actual proof of delivery, as required by the law. The absence of evidence of delivery rendered the presumption unsustainable. Referring to relevant judgments, the Tribunal held that without proof of delivery, the appeal could not be deemed time-barred. Therefore, the Tribunal set aside the impugned order and remanded the matter to the Commissioner (Appeals) for a decision on the merits, emphasizing the need for proper opportunity to the Appellant without revisiting the limitation aspect. Ultimately, the Tribunal allowed the appeal by remanding it to the Commissioner (Appeals) for further consideration.