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2022 (3) TMI 591 - AT - Service TaxPeriod of limitation for filing an appeal before Commissioner (appeals) - SCN was never received by the appellant nor even the Order-in-Original was received - Violation of principles of natural justice - Recovery of short duty alongwith interest and penalty - applicability of time limitation - HELD THAT:- Perusal of section 84 (sub section 2) of Finance Act makes it clear that the time period available with the assessee to file the appeal before Commissioner (Appeals) against the Order-in-Original is the period of three months from the date when he received the decision which was challenged before Commissioner (Appeals), instead of date of Order-in- Original itself. No doubt the Order-in-Original as was challenged before the Commissioner (Appeals) is dated 16.10.2019 but as already observed above, admittedly it was passed in the absence of appellants. From the documents on record it is apparent that copy of the said order was received by the appellant only on 25.9.2020. There is no denial apparent on record to falsify this date of receipt and that the Show cause notice was not received by the appellant. The department has not produced any proof of service of said Show cause notice - the Order-in-Original was not received by the appellant immediately after it was pronounced, it being served on the wrong address not pertaining to the appellant. The certified copy of order thereof was received by the appellant only on 25.9.2020. The appeal before Commissioner (Appeals) was apparently filed on 9.11.2020. i.e very much within the time limit prescribed by section 84 of the Finance Act (as reproduced above). Resultantly, the first point of adjudication is answered in affirmative in favour of the appellant. Principles of natural justice - opportunity of hearing not provided - HELD THAT:- It becomes clear that no opportunity of hearing was provided to the appellant to put forth his defence. First principle of natural justice i.e. Audi Alteram Partem, is not followed by Adjudicating Authority. The appellant had no opportunity to make himself available before the concerned authorities to put forth his stand. The authorities have wrongly issued a show cause notice at the wrong address. It was the recovery notice which was served on wrong address as well as registered address, accordingly was received by the appellant. Immediately thereof the appellant made representation before the Department on 04.09.2020 i.e. much prior to the order passed by the Commissioner (Appeals). Still his representation was not at all considered by the adjudicating authorities below. The department has not produced any evidence about service of Order-in-Original on appellant on any date prior to the aforesaid date of receipt of said order. Order of Commissioner (Appeals) is miserably silent about the receipt of certified copy of Order under challenge before him on 25.9.2020. Had the said fact being considered by Commissioner (Appeals), he could have rightly appreciated the appeal to have been filed within the statutory period for the same. The absence thereof is sufficient violation of aforesaid principles of nature justice. The appeal filed before the Commissioner (Appeals) was filed within two months of date receipt of Order-in-Original by the appellant. Commissioner (Appeals) has wrongly held the same to be barred by time - appeal allowed by way of remand.
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