Home Case Index All Cases Service Tax Service Tax + AT Service Tax - 2021 (9) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (9) TMI 494 - AT - Service TaxMaintainability of appeal - time limitation for filing appeal - appeal filed within two months from the date of receipt of Order-in-Original as is required under Section 35A of Central Excise Act - manpower recruitment supply agency service - HELD THAT:- The date of Order-in-Original is 18.03.2019 but there is no evidence to show as to when the said order was received by the appellant. The learned Commissioner (Appeals) has mentioned that “OIO was dispatched by registered post” and has not been received back undelivered, therefore, is deemed to be delivered. The findings itself makes it clear that the findings of Commissioner (Appeals) are merely presumptive. There is no effort on the said adjudicating authority to ensure as to whether the order was actually received by the appellant or not. Period of limitation for filing an appeal before the Commissioner is no doubt of 2 months but this period has to reckon not from the date of Order-in-Original i.e. the order challenged before Commissioner (Appeals), but from the date of receipt of said Order-in Original by the assessee. The valuable right of the assessee to seek a remedy by way of appeal cannot be forfeited based on mere presumptions and surmises - It is clear that there is no evidence as on what date the Order-in-Original got actually received by the appellant. Since the date of receipt of Order-in-Original apparently is 17.07.2019 and the appeal being filed on 7th August, 2019. It is held that the appeal was very much within the period of two months from the date of receipt of Order-in-Original as is required under Section 35A of Central Excise Act. Learned Commissioner (Appeals) is held to have wrongly rejected the same being barred by time - the Commissioner (Appeals) is required to adjudicate the matter on merits. Appeal allowed by way of remand.
|