Service tax appeal allowed after department fails to prove actual receipt of order-in-original by manpower recruitment agency

CESTAT Chandigarh set aside the Commissioner's order rejecting an appeal on time limitation grounds in a service tax matter involving manpower recruitment agency services. The adjudicating authority issued an order-in-original on 25.01.2022, but the appellant never received it and only learned of its existence through a phone call from CGST Division. The appellant obtained the order copy via email on 07.11.2023 and filed appeal on 24.11.2023, which was within the prescribed limitation period. The tribunal found that the department failed to prove actual receipt of the order, merely establishing dispatch. Without proof of delivery, service cannot be presumed. The matter was remanded to Commissioner (Appeals) with directions to decide on merits after providing hearing opportunity and pass reasoned order within two months. Appeal allowed by way of remand.

---

---

ISSUES:

Whether the appeal filed beyond the prescribed limitation period under Section 85(3A) of the Finance Act, 1994, can be entertained when the appellant did not receive the Order-in-Original.Whether the presumption of service of the Order-in-Original on the date of dispatch by speed post, without proof of actual receipt, is legally valid.Whether the appeal should be decided on merits despite the limitation objection.

RULINGS / HOLDINGS:

The appeal cannot be rejected as time barred if the appellant did not receive the Order-in-Original, and no proof of service has been established by the department; hence, the limitation period starts from the actual date of receipt.The presumption that the Order-in-Original was received on the date of dispatch is not sustainable in the absence of proof of delivery, and "in the absence of actual proof of delivery, it cannot be presumed that the Order-in-Original was served on the appellant."The matter is remanded to the Commissioner (Appeals) to decide the appeal on merits after affording an opportunity of hearing, as the appeal was dismissed without such consideration.

RATIONALE:

The Court applied the statutory limitation provisions under Section 85(3A) of the Finance Act, 1994, which prescribe the time limit for filing appeals before the Commissioner (Appeals).The Court emphasized the principle that burden of proof for service of the Order-in-Original lies on the department, and mere dispatch does not constitute conclusive proof of receipt.The decision reflects adherence to procedural fairness by requiring that the appeal be heard on merits rather than dismissed on limitation grounds based on unproven assumptions.No dissent or doctrinal shift was indicated; the Court followed established principles regarding service of orders and limitation periods.

---