Averment in Service Tax Appeals as Date on adjudication orders is earlier than Order's dispatch date: CESTAT directs read judication [Read Order]

The Allahabad bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) The Order-in Original was passed by the Dy. Commissioner (AE), CGST, confirming demand of service tax along with interest and penalties for F.Y 2014-15 and F.Y 2015-16.

The two orders were challenged by the Appellant in separate appeals before the Commissioner (Appeals) which were filed on 17.05.2024 where in the date of service of the two orders was disclosed as 19.04.2022. By noting that the date of service of orders dated 31.03.2022 has been stated as 19.04.2022 and the appeals were filed on 17.05.2024, the  Commissioner (Appeals) dismissed the appeals as not maintainable and barred by limitation on the ground that the subject appeals were filed beyond the statutory time period of two months and is rather, even beyond the additional condonable time of one month. 

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On 28.10.2024, when the Miscellaneous Applications filed by the Appellant seeking Early Hearing applications were allowed, the two appeals were heard at length. Assailing the impugned orders, Shri Nishant Mishra, counsel for the Appellant submitted that since inception the Appellant was working at rented premises situated at Vaishali Industrial Estate, Sahibabad and Service Tax registration was also issued for the said address, upon enforcement of GST regime, the Appellant was issued GST registration certificate for the said address.

 Sometime in the month of December’ 2020, the Appellant shifted to the new address at Indirapuram after which the PAN of the proprietor was updated and thereafter new GST registration certificate was issued for this address, since no proceedings were pending against the Appellant hence there was no occasion to inform the new address to the Service Tax Authorities. The counsel further submitted that the two Show Cause Notices  were issued on 30.12.2020 and 22.04.2021 addressed to the old address, the Adjudication orders dated 31.03.2022 were also addressed to and dispatched to the old address and it was only when in April’ 2024, the proprietor met the owner of the old premises, he came to know about the Adjudication orders for the very first time and accordingly he informed the entire facts to the Chartered Accountant and instructed him to file appeals by mentioning the entire facts but the Chartered Accountant not only failed to mention the correct facts but on the contrary stated completely incorrect facts regarding date of service of Adjudication orders on 19.04.2022, which date was even prior to the date of dispatch of the two orders.

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Since the proprietor became aware of the two orders only in the month of April’2024 and not prior to that, hence the two appeals filed on 17.05.2024 were filed within the period of limitation and therefore, the two appeals are wrongly dismissed as not maintainable and barred by limitation.

The single bench of P.K. Choudhary, Member (Judicial) viewed that there is no dispute over the fact that the Appellant was earlier issued Service Tax registration in Form ST-2 dated 14.01.2009 which mentions the address ‘221A, Rachna Sector-3A, Vaishali Ind Estate, Ghaziabad, Uttar Pradesh’ (‘old address’) and upon enforcement of GST regime, the Appellant migrated to GST and was issued registration certificate in Form GST REG0-06 dated 28.07.2018 which also mentions the same old address. Thus, there is no dispute that till 28.07.2018 the Appellant was operating from the same old address. 

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The Appellant claims to have shifted to ‘Gyan Khand-1, SF-01, Plot No. 27, Indirapuram, Ghaziabad, Uttar Pradesh – 201 014’ (‘new address’) sometime in the month of December’2020 and also claims that after getting the PAN of the proprietor updated, amendment in registration was sought after which amended registration certificate in Form GST REG-06 dated 22.11.2021 was issued for the new address. Thus, the fact of change of address is clearly not in dispute. The Appellant has also filed an Affidavit stating change in address in the month of December’2020 and therefore, in absence of any contra evidence on record, the same is accepted to be correct. 

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The Appellant while filing the two appeals, not only himself disclosed the date of service of Adjudication orders as 19.04.2022 but also requested for condonation of delay. On perusal of record, it clearly transpires that the two orders were dispatched by the Department much after 19.04.2022, which fact is also corroborated from the contents of the letter dated 09.12.2024 of the Assistant Commissioner, CGST, Division-VI, Ghaziabad.

On considering the peculiar facts of the present case where the date stated in the appeals regarding communication of the Adjudication orders is much prior to the date of dispatch of the said orders which shows that averments in appeals were contrary to the instructions of the Appellant and also the medical records of the proprietor brought on record by the Appellant which shows medical condition of the proprietor, this Tribunal is of the opinion that the Appellant should not suffer for the lapses on the part of the Chartered Accountant who drafted the appeals, contrary to the instructions of the Appellant. 

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Once the date of dispatch of the Adjudication orders is much after the date disclosed in the appeals and the Adjudication orders were admittedly dispatched to the old address, the inescapable conclusion is that the Appellant became aware of the adjudication orders only when the envelopes containing the same were provided to the proprietor by Shri S.K Jigwani, owner of the old premises.

In view of these facts supported by Affidavit and also in absence of any contrary material on record, the inescapable conclusion is that the two appeals were filed within the statutory time period and were therefore not barred by limitation. The impugned orders are, therefore, not sustainable and consequently set-aside. 

To Read the full text of the Order CLICK HERE

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