2025 (7) TMI 341

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....he grounds of limitation. 2. The facts in brief, are that the department conducted audit of appellant's records on 10.11.2020 and 26.11.2020 and it was noticed that the appellant in the financial year 2014-2015 to 2017-2018 had received various incomes under different accounting head pertaining to sale of tender but have shown the same under other operating revenue. Other miscellaneous income were also found recorded as rental from contractors. The amount so received was opined to be an amount received for rendering a service which is nowhere mentioned in the negative list of Section 66D of the Finance Act. Accordingly, vide Show Cause Notice No. 76/2021 dated 20.04.2021, the appellant was called upon to pay service tax amounting to....

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....ara 16.2, 16.3 and 17.2 have been impressed upon. It is mentioned that there is no infirmity in those findings in light of the statutory mandate with the Commissioner (Appeals) to not to consider any appeal filed beyond the period of limitation prescribed under Section 85 of Finance Act, 1994. With these submissions, the appeal is prayed to be dismissed. 6. Having heard both the parties perusing the record and the submissions placed on record, it is observed that Commissioner (Appeals) in para 16.2 has referred about the letter dated 07.02.2023 wherein along with the copy of impugned Order-in-Original it was conveyed to the appellant that the Assistant Commissioner, CGST, Div-B, Jodhpur has sent the original copy of Order-in-Original No.....

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....mons 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, summons or notice is tendered or delivered by post or a copy thereof is affixed in the manner provided in sub-section (1)." On perusal of the aforesaid amended provision, It is clear that after the words "sending it by registered post with acknowledgment due" the words i.e. "or by speed post with proof of delivery has been inserted". 8. In the present case the order was not dispatched by registered post. The order was sent by speed post and in terms of Section 37C, as quoted above, there should be proof of delivery also. In the pr....

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.... be served on the assessee or his agent by Registered Post A.D. or any other mode specified in Section 37C and mere proof of dispatch of order is not sufficient compliance of the said section. 11. This issue is also squarely covered by the decision of the Hon'ble Gujrat Hlgh Court in Regent Overseas Pvt. Ltd. Vs. Union Of India,- 2017 (6) GSTL 15 (Guj.)  the appellant states that the Hon'ble High Court at Para 8 held: "8. Thus, under clause (a) of sub-section (1) of Section 37C of the Act, in case of service of notice by speed post, the same has to be with proof of delivery. To put it differently, service by speed post is valid provided there is proof of delivery. In the present case, it is an admitted position that....

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....long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The judgment lays down the pre-requisite for issuance of notice. Any notice issued in violation of section 37C is not valid. It is worth mentioning that section 37C has been made applicable to service tax also by virtue of section 83 of the Finance Act, 1994. Hence, the principle laid down in the judgment shall mutatis mutandis apply to notice served in service tax cases also. 13. In Jay Balaji Jyoti Steels Ltd. v. Cestat, Kolkata - 2015 (1) TMI 859 - Orissa High Court  where order was sent by speed post, it was held that post office issues receipt for both - by registered post and by speed po....

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.... primacy over length of delay. 16. In the present case the date of receipt of order is 07.02.2023 Commissioner (Appeals) in para 16.2 has recorded that copy of the order was provided to the appellant vide letter dated 07.02.2023. Though it is simultaneously mentioned the said Order-in-Original was provided to the appellant earlier also being dispatched through Speed Post on 02.04.2022 itself. However, in light of entire above discussion, it stands clear that the requirement of the service of any process depends upon the proof of proper receipt of the same by the recipient. The said evidence is admittedly missing on record. Hence the date of receipt of order as mentioned in Section 85 of Finance Act, 1994 is 07.02.2023. The present a....