The New Delhi Principal Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) ruled that an appeal cannot be dismissed as time-barred without sufficient evidence of service of the order-in-original on the appellant.
Subham Minerals & Chemicals, the appellant, is a unit of Shree Ram Lime Products Pvt. Ltd. The appellant challenged an order-in-appeal dismissing their appeal as time-barred under Section 85 of the Finance Act, 1994.
The appellant approached the CESTAT arguing that they never received the order-in-original and only became aware of it upon receiving a recovery notice dated April 29, 2015, which they received on May 12, 2015.
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The appellant immediately requested a copy of the order on May 13, 2015, and received it from the Range Officer on June 1, 2015. The appeal was filed on July 3, 2015.
The department’s counsel argued that the order-in-original was dispatched on February 27, 2015, with a postal receipt dated March 2, 2015, but they could not produce an acknowledgment card or proof of delivery.
The appellant’s counsel relied on the Rajasthan High Court ruling in R.P. Castings Pvt. Ltd. v. CESTAT, where a delay of nearly 10 years was excused due to the lack of evidence of delivery. The revenue countered that the order had been dispatched and recorded in the dispatch register, claiming that this sufficed to establish service.
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The two-member bench comprising Binu Tamta (Judicial Member) and Hemambika R. Priya (Technical Member) observed that under Section 37C(1) of the Central Excise Act, 1944, service of an order requires registered post with acknowledgment due or proof of delivery. In the absence of an acknowledgment card, the tribunal found the department failed to prove service of the order.
The tribunal held that rejecting the appeal on the grounds of delay without verifying service compliance was erroneous. So, the tribunal aside the impugned order and remanded the matter to the Commissioner (Appeals) for consideration on merits. The appellant’s appeal was allowed.
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