TaxTMI 
TaxTMI 
2026 (5) TMI 754
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.... to the tune of Rs. 7494618/- under pre GST regime i.e. during the period April 2017 to June 2017, for providing taxable services for which they were liable to pay service tax. 2.2 On verification it was found that the appellant was neither registered with the department nor has discharged any service tax. In order to ascertain the exact quantum of service tax the appellant was requested to provide certain specific documents, however no reply was received from them. 2.3 On the basis of preliminary inquiry it was found that the appellant has provided taxable services for which they were liable to pay service tax as detailed in the table below: Financial year Receipts as per Income Tax Data Service Tax @ % Service Tax Payable 2017-18 (till June 2017) 74,94,618 15 11,24,193 2.4 Thus it was concluded that the appellant was liable to pay service tax to the tune of Rs. 1124193/-. While computing the service tax no benefit of exemption, abatement or part payment of service tax under reverse charge mechanism was extended for want of requisite documents. 2.5 A Show Cause Notice dated 08.08.2022 was issued to the appellant asking them to show cause as to w....
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....es Ten Thousand Only), upon the party under Section 77(1) (c) of the Finance Act, 1994 for contravention of provisions of Rule 5A (2) of the Service Tax Rules, 1994. (v) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(1) (a) of the Finance Act. 1994 for contravention of section 69 of the Act read with Rule 4 of the Service Tax Rules, 1994. (vi) I also impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(2) of the Finance Act, 1994 for contravention of provisions of Section 70 of Act read with Rule 7 of the Rules." 2.7 On receipt of the order in original appellant filed the appeal before Commissioner (Appeal) which has been dismissed as per the impugned order. 2.8 Hence this appeal. 3.1 I have heard Ms Poonam Joshi, Advocate for the appellant and Shri Manish Raj, Authorized Representative for the revenue. Hearing was conducted in virtual mode on the request of the counsel for the appellant. 3.2 Arguing for the appellant, counsel submitted that;- • Appellant is a registered assessee with service tax having registration in Surat. They were never registered with the ser....
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....aw. Reliance is placed on the following decisions: • Superb Fly Consultancy [2025 Tax Corp (ST) 42560 (CESTAT-ALLD) • Shri Narendra Dalai [2023 Tax Corp (ST) 39129 (CESTAT-Del)] • Delhi Metro Rail Corporation [2023 Tax Corp (ST) 38511 (CESTAT-Del)] • Even on the merits of the case the order is bad in law, as the show cause notice has been issued only on the basis of information received from Income Tax authorities without any verification of the same. They have been paying service tax against the receipts in Surat (Reference is made to copy of ST-3 and the Audit Report) 3.3 Authorized Representative re-iterated the findings recorded in the impugned order. 4.1 I have considered the impugned order along with the submissions made in appeal and during the course of arguments. 4.2 Impugned order records the findings as follows: "5.1 Before going to the merit of the issue some relevant provisions are required to be dealt. In this regard it is observed that under Section 85(3A) of the Act- (84) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating ....
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....72. This presumption is rebuttable i.e. the recipient can prove non-delivery, but in the absence of such proof, it is generally assumed that effective service has been made within the ordinary course of postal delivery. 5.6 As per the provisions of section 85(3A) the appeal has to be filed within two months from the date of communication of order. In case of genuine reasons of delay the limit for such condonation of delay has been limited upto one month. Taking into account the time line given under section 85(3A) the appeal should have been filed on or before 27.12.2023, if 2-3 days are taken into for the service of the impugned order. However, it is on record that the appeal was filed much beyond the stipulated time in contravention of the time line given under section 85(3A) of the Act. 5.7 In the case of N. Parameswaran Unni v/s G. Kannan & Another (2006) (Criminal Appeal No. 455 of 2006) the Hon'ble Supreme Court) has observed that under Section 27 of the General Clauses Act, 1897, and Section 114 of the Indian Evidence Act, 1872, a notice sent by registered post to the correct address is presumed to have been served at the time it would have been deliver....
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....corroborate that they have paid due service tax. Hence I find that the impugned order is legal and proper and free from any infirmity with regard to jurisdiction as well as the demand confirmed against the appellant. Thus, I reject the appeal filed by the appellant on the ground of being time barred as well as on merits. The appeal is disposed of accordingly." 4.3 The basic question which needs to be addressed in this appeal is whether the revenue authorities were corresponding with appellant at its known or correct address. I find that nothing has been placed on record to show that appellant was present or conducting any business form that address. In the show cause notice and the adjudication order, mention is made of the GSTIN of the appellant, which showed the registered/ business premises of the appellant at that said address. However on verification, I find that though this GSTIN was allotted to the Appellant indicating that address at the time of migration to GST regime on 01.07.2017, the same was cancelled. I cant find the date of cancellation. However it is interesting to note that revenue did not caused any verification of the said address or have provided any....
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.... question to be adjudicated is- 1. Whether the appeal before the Commissioner (Appeals) was filed within the prescribed limitation period ? 2. Whether the sufficient opportunity of hearing was available with the appellant ? Following facts are relevant to be considered to adjudicate the above questions: 1. The show cause notice was issued at the address: 2168, Sogani Bhawan, Maniharon ka Rasta, Kishanpole Bazar, Jaipur 2. Order-in-Original was also served at 2168, Sogani Bhawan, Maniharon ka Rasta, Kishanpole Bazar, Jaipur 3. The registered address of the appellant with department of Revenue is Plot No. 355, Road No. 14, RIICO Commercial Complex, VKI Area, Jaipur 4. The demand notice was served upon both the above mentioned addresses. 5. There is no document with the Revenue to prove that 2168, Sogani Bhawan, Maniharon ka Rasta, Kishanpole Bazar, Jaipur address was also registered address of the appellant, or to prove that it was the correct address. 6. The certified copies of the show cause notice as well as Order-in-Original which was passed ex-partie were received by the appellant on 25.9.2020. ....
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.... I hold that the appellant was never served with the show cause notice and Order-in-Original. The Order-in-Original is passed exparte. I also draw my support from another decision of this Tribunal in the case of Ram Nivas Singh Contractor Vs. Commr. Of C. Ex. & S.T., Allahabad reported as [2019 (24) G.S.TL. 451 (TriAll.)] has also been relied upon wherein the service of the show cause notice was by affixing the same on the premises but it was not considered and notice was held to be ‗not served' / an improper service. The above said discussion is sufficient for me to hold that the Order-in-Original was not received by the appellant immediately after it was pronounced, it being served on the wrong address not pertaining to the appellant. The certified copy of order thereof was received by the appellant only on 25.9.2020. The appeal before Commissioner (Appeals) was apparently filed on 9.11.2020. i.e very much within the time limit prescribed by section 84 of the Finance Act (as reproduced above). Resultantly, the first point of adjudication is answered in affirmative in favour of the appellant. 8. Second point of adjudication: From the above discussion about ....
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....stands allowed by way of remand." 4.6 In case Global Construction [(2023) 6 Centax 77 (Jhar.)] Hon'ble Jharkhand High Court has held as follows: 7. The appeal has been rejected by the Commissioner (Appeals), Central Goods & Services Tax and Central Excise, Ranchi only on the point of limitation since it was preferred after almost 2 years and 9 months on 29-9-2021. Under Section 85 of the Finance Act, 1994 the statutory limit of 60 days is prescribed for preferring an appeal. The delay, if any, is condonable up to 30 days beyond the period of 60 days under section 85(3A) of the Act. However, two facts emerge from the pleadings on records which cannot be ignored: first that the certified copy of the impugned order was provided to the appellant on 19th December 2020 by the Adjudication Branch of Central Goods & Services Tax and Central Excise, Ranchi which means that by that time the relaxation of limitation period as per the directions of the Apex Court in Suo Motu Writ Petition (Civil) No. 03/2020 had commenced due to the COVID lockdown. The other fact which emerges from the information obtained under RTI vide Annexure-11 from the office of the Principal Commissioner, Ce....