TaxTMI 
TaxTMI 
2025 (3) TMI 629
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....either filed the returns in ST-3 nor discharged its service tax liability. Thus, on the basis of the income that was declared under the Income Tax Act, 1961, a show cause notice in SCN.No.26-2019-ADC dated 07.11.2019 came to be issued, wherein it was proposed to levy service tax of Rs. 72,55,238/-. 3. The appellant submitted its reply in response thereto. On a consideration of the appellant's reply, an order of adjudication came to be passed. It is important to note that the Order in Original dated 31.03.2021, came to be served on one of the partner's daughter, one Ms.Vaibhavi, on 16.07.2021. Aggrieved by the Order in Original, the appellant preferred an appeal in Appeal No.79 of 2023(CTA-II/CS). The appeal was filed on 24.03.2023, before the respondent herein. It was the case of appellant that the said Ms.Vaibhavi did not inform her father, a partner in the appellant firm nor any of the other partners and only on initiation of recovery proceedings dated 30.01.2023, the appellant became aware of the order dated 31.03.2021. Thereafter, appellant obtained copies of Order in Original and filed an appeal on 24.03.2023. 4. Before proceeding further it may be relevant to ex....
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....bove period, it may be filed within a further period of 1 month, if sufficient cause is shown. The appellate authority proceeded to reckon the limitation for filing the appeal from 16.07.2021, i.e., the date on which the order was allegedly served on Ms.Vaibhavi i.e., the daughter of one of the partners; therefore, the appeal ought to have been filed on or before 15.10.2021, the appeal, however, was filed on 24.03.2023. Thus, barred in terms of the limitation prescribed in Section 85 (3A) of the Finance Act, 1994, for filing appeal. The relevant portion of the order of the appellate authority/respondent herein reads as under: "7. No relaxation in time can be given beyond statutorily applicable period as held by Hon'ble Supreme Court in the case of M/s Singh Enterprises [2008 (221) E.L.T. 163 (S.C.)] ..... 8. Further, I am not going into the merits of the case, in view of the findings given above. In support, I rely on the following decision held by the Hon'ble Income Tax Appellate Tribunal in the case of Medsave Health Insurance vs ACIT, CPC, TDS, Ghaziabad in ITA Nos.1027, 10218 & 1014 to 1016/Del/2022 dated 29.03.2022, which was passed by the ITAT relyin....
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....factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case maybe, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy thereof on the notice board of the officer or authority who or which passed such decision or order or issued such summons or notice... (2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post [or courier referred to in sub-section (1)] or a copy thereof is affixed in the manner provided in sub-section (1).]" 8. On a reading of the above provision and more particularly sub- Clause (a) to sub-Section (1) of Section 37C of the Central Excise Act, 1944, which stands incorporated into the Finance Act, 1994 by virtue of Section 83 of the Finance Act, 1994, it is clear that for a service to be valid, tender must be to the person to whom it is intended, which in the present case is M/s.Proccla....
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....ered post with acknowledgement due to the person for whom it is intended or his authorized agent. If this mode of service is unsuccessful then service can be effect by affixation. It is not the case of the Department that it simultaneously also dispatched the Order to the Appellant by registered post with acknowledgment due. 7. It is an anathema in law to decide a matter without due notice to the concerned party. Every effort must be taken to meaningfully and realistically serve the affected party so as not merely to ensure that he has knowledge thereof but also to enable him to initiate any permissible action. The Appellant justifiably submits that it was statutorily impermissible for the Respondents to serve the Adjudication Order on a "kitchen boy", who is not even a middle level officer and certainly not an authorized agent of the Appellant. The version of the Appellant that it learnt of the passing of the Adjudication Order dated 30.3.2012 only when, in the course of the recovery proceedings, the Department's officials had visited its unit, is certainly believable. The fact that, firstly, the Order had not been passed in the presence of the Appellant, so as to render ....