2010 (3) TMI 487 - AT - Service Tax

Tribunal overturns rejection of appeals for late filing, emphasizes proper service. Commissioner to review delay condonation.

The Tribunal set aside the initial rejection of the appeals due to delayed filing, citing failure in proper service of the Order-in-Original. The ... Limitation - The issue involved in this case is regarding the liability to Service Tax on the activities done by the appellant herein. Commissioner (Appeals) has held that the Orders-in-Original were served upon the appellants as per the provisions of Section 37C of the Central Excise Act, 1944 and coming to such a conclusion he has held that both the appeals have been filed beyond the period of limitation. Held that - the Order-in-Original was received back by the authorities from postal authorities and consequent to that the authorities have not tried to serve the orders as provided in the Section. Thus Commissioner (Appeals) directed to consider application for condonation of delay and if condoned, appeal to be decided on merits. Issues: Liability to Service Tax on activities done by the appellant, Compliance with service of Order-in-Original, Condonation of delay in filing appealLiability to Service Tax on activities done by the appellant:The case involved the liability to Service Tax on activities carried out by the appellant, who was renting space for advertisement purposes. The period under consideration was from 1997 to 2002. The learned Commissioner (Appeals) had initially held that the Orders-in-Original were served upon the appellants as per the provisions of the Central Excise Act, 1944, and concluded that both appeals were filed beyond the prescribed time limit. Consequently, the appeals were rejected without considering the merits of the case.Compliance with service of Order-in-Original:During the hearing of the stay application, it was revealed that the Order-in-Original had been dispatched by Registered Post Acknowledgement Due but was returned by the postal authorities with remarks indicating non-delivery. The authorities failed to follow up on serving the orders as required by the relevant sections of the Central Excise Act, 1944. The issue was settled by a Larger Bench decision of the Tribunal, which established that if a Registered AD post is returned, alternative modes of service should be attempted. Since the authorities did not take further action to serve the order, it was deemed unserved. The appellants claimed they received the Order-in-Original much later than the presumed date of service, justifying their delayed appeal filing. The Tribunal set aside the impugned orders and directed the Commissioner (Appeals) to consider the condonation of delay application filed by the appellants, as the lower authorities had not fulfilled the service requirements outlined in the law.Condonation of delay in filing appeal:The Tribunal held that the appellants had filed the appeal within the condonable period, considering the delay in receiving the Order-in-Original. The Commissioner (Appeals) was instructed to review the application for condonation of delay and decide on the merits of the case. As a result, both impugned orders were set aside, and the matters were remitted back to the Commissioner (Appeals) for a fresh consideration based on the directions provided by the Tribunal.This judgment addressed the issues of liability to Service Tax, compliance with service of the Order-in-Original, and the condonation of delay in filing the appeal, providing clarity on the procedural aspects and ensuring that the appellants received a fair opportunity to present their case before the competent authority.