2025 (7) TMI 1075 - AT - Service Tax

Rejection of appeal - appeal dismissed being non-maintainable on the ground of limitation - no proof on record to show that the Order-in-Original was delivered to the appellant - HELD THAT - It is found that the learned Commissioner (Appeals) after hearing the appeal on merits sought the report from the jurisdictional division office regarding the delivery of the Order-in-Original and on the basis of the report of the jurisdictional division office stating that the Order-in-Original was sent to the appellant on 04.10.2023 through speed post the learned Commissioner (Appeals) came to the conclusion that the appeal which was filed before him on 16.01.2024 is after the delay of more than three months and therefore it is time barred. Further it is found that there is no proof on record produced by the department to show that the Order-in-Original was delivered to the appellant on 04.10.2024. It is also found that the learned Commissioner (Appeals) has not given any opportunity to the appellant to prove that they have not received the Order-in-Original within time. The learned Commissioner (Appeals) has wrongly assumed the date of dispatch as the date of communication of the order and thus has wrongly dismissed the appeal of the appellant. The impugned order is liable to be set aside - the matter is remanded back to the Commissioner (Appeals) with a direction to decide the case on merits after affording an opportunity of hearing to the appellant and thereafter pass a reasoned order in accordance with law within the period of two months from the date of receipt of the certified copy of this order - appeal allowed by way of remand.

Summary

ISSUES:

Whether the appeal before the Commissioner (Appeals) was barred by limitation under Section 85(3A) of the Finance Act, 1994.Whether the date of dispatch of the Order-in-Original can be presumed as the date of receipt for the purpose of limitation.Whether the appellant was entitled to an opportunity to rebut the presumption of receipt of the Order-in-Original.Whether the appeal should be decided on merits despite the limitation objection.

RULINGS / HOLDINGS:

The appeal was dismissed by the Commissioner (Appeals) on the ground of limitation, holding that the appeal was filed after the expiry of the prescribed period under Section 85(3A) of the Finance Act, 1994, which allows two months for filing an appeal with a possible extension of one month.The Commissioner (Appeals) wrongly assumed the date of dispatch (04.10.2023) of the Order-in-Original as the date of receipt by the appellant, without any proof of actual delivery.The appellant was not given any opportunity to rebut the presumption of receipt or to prove non-receipt within the limitation period.The impugned order rejecting the appeal as time barred was set aside, and the matter was remanded to the Commissioner (Appeals) for decision on merits after affording an opportunity of hearing to the appellant.

RATIONALE:

The Court applied the statutory limitation provisions under Section 85(3A) of the Finance Act, 1994, which prescribe a two-month period for filing appeals before the Commissioner (Appeals) with a possible extension of one month.The Court emphasized that the date of dispatch cannot be automatically equated with the date of receipt for limitation purposes absent conclusive proof of delivery, consistent with principles of natural justice and procedural fairness.The Court noted the absence of any opportunity given to the appellant to contest or rebut the presumption of receipt, constituting a denial of the right to be heard.Accordingly, the Court held that the limitation issue was not properly adjudicated and remanded the case for fresh consideration on merits.