2025 (7) TMI 1076 - AT - Service Tax

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 ... Rejection of appeal on the ground of time limitation - appellant is liable to pay service tax but is not paying the same - Manpower Recruitment Agency services - service of order - no proof of actual receipt - HELD THAT:- It is found that the adjudicating authority passed the Order-in-Original on 25.01.2022 which was never received by the appellant as no proof of receipt of the order has been brought on record rather the appellant came to know about the Order-in-Original when they got a call from the office of CGST Division, Yamunanagar regarding the passing of the Order-in- Original. It is also found that on being asked, the appellant got the copy of the Order-in-Original on 07.11.2023 through email and thereafter, filed the appeal on 24.11.2023 before the learned Commissioner (Appeals) which is within the period of limitation as prescribed under law. Further, it is found that the learned (Commissioner) has only presumed on the basis of dispatch of the Order-in-Original but the actual date of receipt has not been proved by the department on record and therefore, in the absence of actual proof of delivery, it cannot be presumed that the Order-in-Original was served on the appellant. The impugned order is liable to be set aside - matter is remanded back to the Commissioner (Appeals) with a direction to decide the case on merits after affording an opportunity of hearing to the appellant and thereafter, pass a reasoned order in accordance with law within the period of two months from the date of receipt of the certified copy of this order - 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.