The Delhi Bench of Customs, Excise, and Service Tax Tribunal (CESTAT) ruled that the appellate authority to mandatorily verify service of the order on the assessee, mere dispatching of an order does not imply receipt of the same.
The appellants, M/s. Ghadshyam Enterprises have been registered for providing manpower recruitment/supply agency service. However, a show-cause notice was served upon them proposing the recovery of service tax amounting to Rs.4191817/- along with the interest and the proportionate penalties.
It has been submitted that the said Show Cause Notice was in fact, not received by the appellant till the aforesaid Order-in-Original was passed against them and the said order confirming the proposal of the aforementioned show-cause notice had also not come to the notice of the appellant till the recovery proceedings were initiated against him. It is thereafter that vide letter dated 20th Feb. 2019 the copy of the order was requested from the Department.
The appellant received the said copy and affidavit to this effect as placed on record, has also been impressed upon. It is submitted that he appeared before the Commissioner (Appeals) got filed on 18th April 2019. It is submitted that since the same was filed within 2 months of receiving the copy of Order-in-Original. Learned Commissioner has wrongly rejected the appeal as being barred by time. The order accordingly prayed to be set aside and the appeal is prayed to be allowed.
The Coram of Judicial Member Rachna Gupta ruled that mere dispatch of the order cannot be considered as service. The period of 2 months for filing the appeal has to reckon not from the date of the order announced but from the date of receipt of said order by the assessee in terms of Section 35 of Central Excise Act, 1944. Section 37 C further provided the mode of service.
The CESTAT held that it is mandatory for the appellate authority to verify as to whether the order challenged before him was duly received by the assessee or not. Mere dispatching of orders does not imply the receipt of the same. The above-discussed circumstances reflect no fault on part of the appellant while approaching Commissioner (Appeals) with his grievance. Accordingly, he should not be made to suffer.
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