The Ahmedabad Bench of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), quashed service tax demand and observed that the subsequent service of order copy is date of communication of order-in-original.
The appellant in the present matter is Shree Developers. The appeal was directed against order-in-appeal whereby the Commissioner (Appeals) has rejected the appeal as time-barred on the ground that the order-in-original was received by authorised representative of the appellant on 02.11.2018 and the appeal was required to be filed within two months from 02.11.2018 i.e. by 01.01.2019 but the appeal was filed on 19.09.2022. Accordingly, the delay is more than three years and the same is time barred.
The Commissioner (Appeals) also contended that since the service of order was made to authorised representative it is proper and legal service of order in terms of Section 37C therefore, the date of receipt of order by the authorised representative is to be taken as date of communication of the order. Being aggrieved by the impugned order-in-appeal the appellant filed the present appeal.
Jigar Shah, the Counsel who appeared on behalf of the appellant submits that though the order was served to authorised representative however, the authorised representative is not an authorised agent of the appellant therefore the service of the order to the authorised representative is not in consonance with Section 37C of Central Excise Act, 1944.
The Counsel further submitted that order was never served upon the appellant until 22.07.2022 when the recovery proceedings were initiated against the appellant. Thereafter upon the request of the appellant to provide copy of the order in respect of which recovery proceedings initiated, the appellant received copy of order-in-original dated 30.10.2018 on 22.07.2022. The appeal was filed on 19.09.2022 which is well within the limitation period of two months from the date of receipt of the order as prescribed under Section 85 (3A) of Finance Act, 1994.
P. Ganesan, Superintendent (AR) who appeared on behalf of the Revenue reiterated the findings of the impugned order.
A Two-Member Bench comprising Ramesh Nair, Judicial Member and CL Mahar, Technical Member observed that “We are of the view that the subsequent service of the order copy to the appellant on 22.07.2022 is the date of communication of the order-in-original to the appellant. Accordingly, the appeal filed on 19.09.2022 is well within the prescribed time limit of two months (60days), therefore, there is no delay in filing the appeal. Accordingly, the impugned order is set-aside and the appeal is allowed by way of remand to the Commissioner (Appeals) for passing a fresh order on merits of the case.”
“Our view, authorised legal representative cannot be equated with an authorised agent of the assessee. For this reason, also service of the order to authorised representative i.e. Chartered Accountant dealing with the matter before the Adjudicating Authority is not legal and proper” the Tribunal noted.
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