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Appeal can’t be dismissed for want of Delay if it was due to Non-Receipt of Order-in-Original: Rajasthan HC [Read Judgment]

Appeal - Rajasthan High Court - Petitioner - Taxscan

The Rajasthan High Court held that the petitioner did not have any knowledge of the order had passed against the company but also the copy of the order-in-origin was not received by them. In such circumstances even though the appeal filed by the petitioner was time-barred, the appeal of the petitioner ought to be decided on merits rather dismissing the same on the ground of delay.

The facts of the case are the petitioner Ataullah Construction Private Limited is the holder of Service Tax Registration for ‘Maintenance or Repair Service’ and ‘Erection, Commissioning and installation services’. The adjudicating authority issued an order in original in disregard of the contentions made by the petitioner assessee in the declaration filed by him, thereby creating an illegal demand of service tax under Section 73(2), interest under Section 75, and penalty under Section 78 of the Finance Act, 1994. He, however, was not provided a certified copy of the order in original. The petitioner learnt about the aforesaid order only after he received a telephonic call for recovery of demand. On verification of the record, the petitioner found that no such copy of the order in original has been received by the petitioner or in his office. The petitioner immediately along-with an affidavit requested -the Assistant Commissioner, that if the adjudicating authority to provide him a copy of the order in original, which was never received by him at their address. In response thereto, the respondent provided a certified copy of the order in original to the petitioner. The petitioner without any delay filed an appeal under Section 35 of the Central Excise Act, 1944 before the Commissioner (Appeals-I). However, the Commissioner, without going into the merits of the case, dismissed the same on the ground of limitation.

The petitioner submitted that the respondent ought to have entertained his appeal on merits as he has also filed an application seeking condonation of delay giving all the aforesaid reasons. The Commissioner has mechanically rejected the appeal.

The respondent has submitted that the respondent sent a copy of the order to the petitioner by post and that he has received a report from the postal department that he has delivered the same to the addressee.

The division bench comprising of Justice Mohammad Rafiq and Justice Narendra Singh Dhaddha held that even though the respondents are asserting that the letter was sent to the petitioner by post but the petitioner has filed an affidavit that not only she did not have any knowledge of the order had passed against the petitioner company but also the copy of the order-in-origin was received by her only when the respondent called the petitioner for initiation of recovery proceedings. The detailed representation which the petitioner submitted to the respondent asserts that the order-in-original was not received by the petitioner. No doubt, the appeal filed by the petitioner was time-barred but in the facts of the case, the appeal of the petitioner ought to be decided on merits rather dismissing the same on the ground of delay. So the court decided to condone the delay occurred in filing the appeal and remit this matter to the Commissioner (Appeals), Central Goods And  Service Tax, Jaipur, for its decision on merits.

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