The Delhi bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) held that in the absence of proof of receipt of order-in-original to the appellant sent by speed post, the same cannot be held to have been served.
The appellant provided repairs, reconditioning, restoration or decoration, or other similar services for motor vehicles along with other services against various types of commissions.
Based on scrutiny of documents submitted by the appellant, the appellant is alleged to not have declared and discharged service tax towards income from various types of commission and some other taxable heads which an amount of Rs.32,14,167/- was proposed to be recovered from the appellant towards service tax liability along with interest at an appropriate rate.
The Chartered Accountant has mentioned that the appeal is very much in time as they never received the Order-in-Original dated 28.07.2020. It is only when recovery notice was received by the appellant, the appellant made the request to the Jurisdictional Assistant Commissioner to provide details of the demand pending against the appellant along with a copy of the Order-in-Original and proof of delivery.
It was submitted that the order is liable to be set aside as the Order-in-Original came to the notice of the appellant, on the date of receipt of recovery notice only.
The Departmental Representative while rebutting the submissions has mentioned that notice was duly served on the appellant and was received by the employee of the appellant.
The Single-member bench comprising of Rachna Gupta (Judicial member) held that no doubt in Section 37C of the Central Excise Act, 1944, speed post was the mode of service but proof of dispatch was still mandatory. In the absence of proof of receipt of the O-I-O to the appellant sent by speed post, the same cannot be held to have been served.
Therefore, the bench was of the opinion that the present appeal shall not be thrown at the threshold and shall be decided on the merits of the case. Thus, the case was remanded to the Commissioner (Appeals) with the direction to decide the appeal on the merits of the case after giving a reasonable opportunity of hearing to the appellant.
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