Service Tax - review Order u/s 84 of Finance Act 1994

[chetan jadhav]

An adjudication order dropping the SCN under service tax for FY 16-17 and Q1 of 17-18 was passed on 29.11.2023. Subsequently, review order passed by commissioner on 27.03.2024 and appeal filed by Asst commissioner on 28.03.2024.

We challenged the review order on grounds of limitation since it was beyond 3 months from 29.11.2023 + no date or DIN on review order but Appellate authority rejected our claim and upheld the review order.

I need to understand meaning of term "3 month from date of communication" in section 84(2) of Finance Act 1994.

According to me, date of order should be taken as date communication due to following reason -

1. Adjudicating authority mark the CC of order to Dy Commissioner and hence the order was not actually communicated to Commissioner to review.

2. order was marked CC to NOTICE Board for general information of all stakeholder (This should cover the commissioner

3. Commissioner call for the order for review.....if 3 months are taken from the date of receipt of order by commissioner, it would means unlimited time for commissioner to call for the order and then review which will be against the intention of law maker

4. Office of the adjudicating authority, commissioner and Appellant authority situated in same building.

hence I believe, date of communication shall be the date of order of adjudicating authority and hence review order should have been passed before 29/02/2024 accordingly review order passed after prescribed time is time barred and invalid.

Can expert guide me in this ???

Any case law for my assistance ????

[KASTURI SETHI]

Dear Querist,

(1) If we treat the date of communication by the Review Branch as 30.11.23 (NOT 29.11.23), Review directions (Order-in-Review) should have been issued on or before 29.2.24 as per Section 84 (2) of Finance Act, 1994 but the review directions were issued on 27.3.24..Thus passing the Order-in-Review is hit by time limitation.

(2) As per Section 84 (3) of the Finance Act, 1994 the department has one month more (Total 3+1) for filing an appeal. The Appeal was filed by the department on 28.3.24 which is not hit by time limitation. The Appeal could be filed on or before 29.3.24. If we consider the date of order as the date of communication i.e. 29.11.23, the due date for filing appeal works out to 28.3.24. So the departmental appeal was filed within time limit i.e. on 28.3.24. (within four months)

(3) Here the question arises have you any proof regarding the date of receipt of Adjudication Order by the Review Branch. Although the offices are in the same building, yet there may be inordinate delay in receipt of the order by Review Branch. There are so many genuine factors for such delay. Dealing officer/official may be on long leave on medical ground, time consumed in transfer rotation, negligence etc.

(4) As per Boards Circular dated 23.12.19, DIN is meant for tax payers and not for the internal correspondence between branches of the department.

TO BE CONTINUED

[KASTURI SETHI]

Your Question :  What is the meaning and sense of the word, "Communication"?   

Ans. Pl. study the following case law :-              

R. RAVICHANDRAN Versus COMMISSIONER OF CUSTOMS, CHENNAI - 2021 (5) TMI 209 - CESTAT CHENNAI

 

[chetan jadhav]

Appreciate your response sir. 

But can we not argue that, since order is forwarded for notice board, we can take that as a date communication. 

Further, once review order is tame barred, appeal itself become invalid. 

Now since we are running out of time for filling appeal with CESTAT, can we file the appeal now and then may be request the department to provide internal reference for dispatch of order to commissioner for review ????

[KASTURI SETHI]

But can we not argue that, since order is forwarded for notice board, we can take that as a date communication. 

Ans. NO. Notice board is meant for public (here assessee/Noticee/Co-noticees etc.)

Further, once review order is time barred, appeal itself become invalid. 

Answer : YES

Now since we are running out of time for filling appeal with CESTAT, can we file the appeal now and then may be request the department to provide internal reference for dispatch of order to commissioner for review ????

Answer : YES. Obtain the information under RTI Act.

AI Summary

Time limit for administrative review: review orders depend on date of communication and may be time-barred if delayed.
Section 84(2) fixes the review directions' time bar from the date of communication of the adjudication order; if the adjudication order dated 29.11.2023 is treated as the communication date, the review directions issued on 27.03.2024 are time barred. The department's subsequent appeal of 28.03.2024 falls within the separate extended period available for departmental appeals. Proof of actual receipt by the Review Branch and internal dispatch records are critical to contest timeliness; notice board posting or office co location does not establish communication.