Whether filing of appeal after 2 years can be claimed to be within time when the order itself was received after 2 years and there is no proof of dispatch of order in time by department?

PJ/Case Laws/2012-13/1316

CASE: M/S DIVYA TOURISM PVT. LTD V/S COMMISSIONER OF SERVICE TAX, AHMEDABAD

CITATION: 2012-TIOL-1551-CESTAT-AHM

BRIEF FACTS: The relevant facts that arise for consideration is that the appellant herein were served a show cause notice dated 11.04.2007 for non-discharge of service on air travel agent services. The appellant did not co-operate with the adjudicating authority inasmuch as they did not file any reply to the show cause notice nor they appear for the personal hearing before the adjudicating authority. The adjudicating authority having no other alternatives passed an order in original dated 29.12.2008. The appeal against such order was filed by the appellant on 30.03.2011 claiming before first appellate authority that the order-in-original dated 29.12.2008 was received by them on 30.12.2010 vide letter No. STC/04-05/PREV/MISC./07-08/GR.IV/5286, DT. 30.12.2010. The first appellate authority did not agree with the contentions raised by the appellant and held that the appellant has filed the appeal beyond the period of almost of two years and hence he is not in a position to condone the delay in filing the appeal.

APPELLANTS CONTENTION: The appellant contended that they have not received the order in original dated 29.12.2008 till 30.12.2010 in support of which he filed an application made by them for providing documents like dispatch register under RTI. They contended that the dispatch registers which were given to them did not contain the details of the order in original dispatched to the appellant. As regards to the acknowledgement card , superintendent of the post office has specifically stated in reply to the RTI query that disclosure cannot be made to them as it is third party information. It was also submitted that the department has also not produced acknowledgement card wherein there is no evidence of receipt of the said order in original by the appellant.

REASONING OF JUDGEMENT: The appellant’s request under RTI was for providing the copy of the dispatch register for the year 2008-2009, while the lower authorities have provided them a copy of the dispatch register for the year 2009-2010. The investigation report of the ld. Commissioner also indicates that they could not trace the dispatch records for the period Dec 2008 to Jan 2009. In the absence of any such record, it was deemed that the appellant has received the order in original on 30.12.2010 and has filed an appeal before the first appellate authority on 30.03.2011 which is within the time as per statue. Hence there is no dispute regarding any mistake or delay on part of appellant and so the order is set aside.
The impugned order has dismissed the appeal filed by the appellant only on limitation and has not considered the merits of the case. Since the lower authorities have not considered the merits of the case, we are precluded from going into the merits of the case. Accordingly, we remand back the matter to the first appellate authority to reconsider the issue, after following the principles of natural justice.

DECISION: The appeal is allowed by way of Remand to the first appellate authority.

COMMENT:This is a fortunate case for the appellant by which the appellant has filed the appeal to the Commissioner Appeals almost after 2 years of the passing order and the coincidence that worked in favour of the assessee was that the dispatch register of the relevant period i.e when the order was dispatched is not available with the department for proving that the order was passed much before. The mistake whether be it of the department or of the postal services, has been advantage to the appellant.

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PJ/Case Laws/2012-13/1316

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