2014 (12) TMI 1197 - AT - Service Tax

Restoration of appeal - non receipt of notice - Held that - As prior to 21-2-2014 this matter had been listed for hearing on 20-12-2013 and at that time this matter had been adjourned to 21-2-2014 and the notice in this regard had been issued by Registered post with acknowledgement due on 17-1-2014. There is no document on record to indicate that the notice was not delivered by the postal authorities and was returned undelivered. Once notice for hearing has been issued to an appellant by RPAD in accordance with the provisions of Section 37C of the Central Excise Act 1944 it has to be presumed that the notice has been received by the appellant and if the appellant disputes the receipt of the notice burden is on him to produce positive evidence regarding non-receipt. Since no such evidence has been produced the appellant s plea that the notice was not received cannot be accepted. In view of this miscellaneous application for restoration of appeal is dismissed.

Summary

Issues: Restoration of appeal dismissed ex parte due to non-receipt of hearing notice.

In this case, the appellant filed a miscellaneous application for the restoration of an appeal (No. ST/672/2008) which had been dismissed ex parte. The appellant claimed that they did not receive the hearing notice for the appeal scheduled on 21-2-2014, resulting in their absence during the hearing. The appellant's counsel argued that despite being present on previous hearing dates, the matter was adjourned, and they only learned about the dismissal after receiving the order dated 21-2-2014 on 27-3-2014. The appellant requested the recall of the final order and restoration of the appeal for a fresh hearing, emphasizing the merit and limitation aspects of the case.

The Department Representative opposed the restoration application, stating that the notice for the hearing on 21-2-2014 had been sent via Registered Post with Acknowledgement Due on 8-1-2014 and was not returned undelivered. The Department Representative argued that the final order was passed after considering the merits of the case and was in line with a Larger Bench Judgment of the Tribunal. It was contended that the extended limitation period was correctly invoked, and there was no justification for recalling the final order and restoring the appeal for a fresh hearing.

After hearing both sides and examining the records, the Tribunal noted that the notice for the hearing scheduled on 21-2-2014 was issued on 17-1-2014 via Registered Post with Acknowledgement Due. Since there was no evidence to suggest that the notice was undelivered, it was presumed that the appellant had received the notice. The Tribunal emphasized that if the appellant disputed the receipt of the notice, the burden of proof lay with them to provide positive evidence of non-receipt. As the appellant failed to produce such evidence, their claim of non-receipt of the notice was not accepted, leading to the dismissal of the miscellaneous application for the restoration of the appeal.