2025 (9) TMI 750 - AT - Service Tax

Departmental presumption of service rejected for lack of proof under Section 37C(1)(a); appeal not time-barred, remanded.

CESTAT held the departmental presumption of service unsustainable for want of proof of delivery under Section 37C(1)(a); absent proof, the ... Rejection of appeal on limitation on the ground that the appeal filed by the Appellant before him was delayed beyond the condonable period - error in making the presumption in the absence of proof of delivery not produced by the Department - absence of proof of delivery - Department has not produced conclusive proof of service/delivery of the Order-in-Original as required u/s 37C(1)(a) of CEA - HELD THAT:- It is found that the Tribunal and the superior courts have consistently held that since all the notices, decisions, orders, summons etc. should be in compliance of Section 37C, otherwise it leads to miscarriage of justice. The impugned order has been passed on the presumption by the learned Commissioner (Appeals) that the Order-in-Original dated 25.02.2022 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. It is found that the learned Commissioner have erred in making the presumption in the absence of proof of delivery not produced by the Department - 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 25.02.2022, the same cannot be deemed as served on the Appellant as has been held by the Hon’ble Supreme Court in the case of Saral Wire Craft vs. CCE & ST [2015 (7) TMI 894 - SUPREME COURT]. In absence of such 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. The date of service of the order as mentioned by the Appellant-Assessee before the First Appellate Authority i.e. 01.02.2023 has to be accepted by all concerned. It is further observed that the appeal before the First Appellate Authority was filed beyond the statutory period of 60 days but within the condonable period of 30 day and accordingly, it is found appropriate to condone the delay in filing of the appeal before the First Appellate Authority and remand the matter to the learned Commissioner (Appeals) to decide the appeal on merits without further visiting the aspect of limitation. Appeal allowed by way of remand. ISSUES PRESENTED AND CONSIDERED 1. Whether an appeal can be rejected on limitation where the Department has not produced conclusive proof of service/delivery of the Order-in-Original as required under Section 37C(1)(a). 2. Whether dispatch records alone, absent proof of receipt/acknowledgement, suffice to treat an order as served for computation of limitation under Section 37C. 3. Whether, having found service not proved, delay in filing the first appeal beyond 60 days but within the condonable period can be condoned and the matter remanded for adjudication on merits. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Service and proof required under Section 37C(1)(a) Legal framework: Section 37C(1)(a) prescribes service of orders by tendering or sending by registered post with acknowledgement due to the person or his authorised agent; Section 37C(2) deems service to have taken place on the date of tender/delivery by post or affixture. Precedent Treatment: The Tribunal relied on controlling superior-court authority holding that statutory modes of service prescribed must be complied with; failure to prove service leads to miscarriage of justice and prevents commencement of limitation from the date of dispatch alone. Interpretation and reasoning: The Court examined the record and found no proof of delivery/acknowledgement for the Order-in-Original. Dispatch register entries showed inconsistent dates (03.03.2022 v. 11.03.2022) and no acknowledgement return was on record. The Tribunal emphasised that mere dispatch entries do not satisfy Section 37C(1)(a)'s requirement of proof of service. It is incumbent upon the revenue to produce evidence of delivery/receipt where service is by registered/speed post; absent that, the presumption of service is unsustainable. Ratio vs. Obiter: Ratio - where statutory service requires registered post with acknowledgement, proof of delivery/acknowledgement is necessary to treat an order as served for limitation purposes. Observational/obiter - procedural comments on importance of meaningful and realistic service to enable initiation of remedies. Conclusions: The Tribunal held that service of the Order-in-Original was not proved; the presumption of service made by the lower authority was unjustified in absence of delivery evidence; therefore the order could not be deemed served on the dispatch date for limitation computation. Issue 2 - Sufficiency of dispatch records alone to infer service Legal framework: Section 37C(1)(a) requires registered post with acknowledgement due; evidentiary burden lies on the issuing authority to demonstrate compliance with the statutory mode of service. Precedent Treatment: The Tribunal followed the Supreme Court's jurisprudence endorsing that where the statute prescribes a manner of service, the mandate must be strictly followed and proof of service must be produced; failure to do so results in setting aside initial decisions and restarting limitation from date of knowledge of the order. Interpretation and reasoning: The record contained a Dak Dispatch Register entry with inconsistent dates and lacked the Registered Post acknowledgement. The Commissioner (Appeals) relied on dispatch evidence and non-return by the Post Office to presume service; the Tribunal rejected that approach because proof of delivery (acknowledgement) was not produced. The Tribunal observed that absence of an acknowledgement or similar evidence means the statutory requirement was not complied with and reliance on dispatch alone is insufficient. Ratio vs. Obiter: Ratio - dispatch entries without proof of receipt do not satisfy the statutory requirement of service by registered post with acknowledgement; thus they cannot support a finding that limitation has commenced. Obiter - admonition that all efforts must be made to effect meaningful service to avoid miscarriage of justice. Conclusions: Dispatch records alone were held inadequate; the presumption of service made by the lower authority was unsustainable and the date of actual knowledge (date of service on appellant as asserted) must be accepted for limitation purposes unless contrary proof of delivery is produced. Issue 3 - Condonation of delay and remand for adjudication on merits Legal framework: Where an appeal is filed beyond the prescribed period but within the condonable period, the appellate authority may condone delay if sufficient grounds exist; where service is not proved, limitation cannot be said to have begun on the dispatch date. Precedent Treatment: Following the Supreme Court authority, the Tribunal treated the computation of limitation from the date of asserted knowledge of the order rather than from disputed dispatch dates, and accepted that appeals filed within the condonable period merit condonation where service is not established. Interpretation and reasoning: The appellant asserted actual knowledge on a specific date when an attested copy of the order was provided. Given lack of proof of service by the Department and the accepted principle that service must be proved before limitation is computed from dispatch, the Tribunal accepted the appellant's date of knowledge. The Tribunal found the first appeal was beyond 60 days but within the 30-day condonable period and, in the circumstances, condoned the delay and remanded the appeal for decision on merits. The Tribunal also directed cooperation in remand proceedings and kept all substantive issues open for fresh adjudication by the Commissioner (Appeals). Ratio vs. Obiter: Ratio - where service is not proved, delay in filing an appeal that is within the condonable period may be condoned and matter remanded for adjudication on merits; substantive issues must be decided afresh. Obiter - directions regarding cooperation and avoidance of unnecessary adjournments. Conclusions: The Tribunal condoned the delay in filing the first appeal, set aside the limitation dismissal, and remanded the matter to the First Appellate Authority to decide the appeal on merits without revisiting limitation; all substantive issues were kept open.