Academy Of Aviation & Engineering vs Commissioner Of Service Tax ...
- CitationAppeal No 679-2013
Ratio decidendi
The rule this decision rests on
Where the Commissioner (Appeals) relies on a report, as to the dispatch of an order under Speed Post, to hold that an appeal is time-barred, that report must be disclosed to the appellant so that the appellant has an opportunity to contest it before the limitation finding is made; failure to disclose it is a denial of that opportunity and vitiates the finding. Where the question of limitation turns on whether service of an order by Speed Post, as opposed to Registered Post with acknowledgement due, is sufficient to raise a presumption of receipt under the statutory provision, the appellant is entitled to contend, with reference to High Court authority, that such dispatch does not give rise to a presumption of receipt, and the matter must be decided on that basis after the appellant has been heard on it.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-In-Appeal No 679-2013 dated 20/11/2013 passed by Commissioner of Central Excise and Service Tax , BANGALORE-II( Appeal) ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether Their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
Academy Of Aviation & Engineering No.38-39, Prestige Enclave, Bettahalasur Cross, 3.km, After Yelahanka Airforce Station, B.b. Road, Nh-7, BANGALORE - 562157 KARNATAKA Appellant(s)
Versus
Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Shri Cherian Punnoose, Advocate A.K.B. ASSOCIATES #211, COMMERCE HOUSE, 9/1, CUNNINGHAM HOUSE, 9/1, CUNNINGHAM ROAD, BANGALORE - 560052 KARNATAKA For the Appellant
Dr. A.K. Nigam, Addl. Commissioner(AR) For the Respondent
Date of Hearing: 07/01/2015
Date of Decision: 07/01/2015
CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Shri B.S.V.MURTHY, TECHNICAL MEMBER
Final Order No. 20054 / 2015
Per : ARCHANA WADHWA
After dispensing with the condition of predeposit, we proceed to decide the appeal inasmuch as Commissioner(Appeals) has dismissed the appeal as barred by limitation.
2. After hearing both the sides, we find that the order impugned before Commissioner(Appeals) was passed on 30/11/2012. As per the appellant, the said order was not received by them and it is only when the Revenue approached them for recovery of the dues, they came to know about passing of the said order and accordingly approached the Revenue and obtained a copy of the order on 03/05/2013.
3. It is seen that while examining the aspect of limitation, Commissioner(Appeals) procured a report from the office of the Additional Commissioner indicating that the impugned order was dispatched under Speed Post on 07/12/2012 and in terms of provisions of Section 37C, is presumed to be received by them.
4. However, it is seen that the said report was never disclosed by the office of the Appellate Commissioner to the appellant so as to give them an opportunity to contest the same. Apart from that, we also find that both sides have relied upon various decisions of the High Courts laying down the mode of sending of the orders. Learned advocate has relied upon decisions of various High Courts laying down that unless the orders are sent under Registered Post with A/D, the mode of dispatch under Speed Post may not be appreciated and may not held to be a presumptive receipt by the assessee. Learned AR on the other hand has referred to Allahabad High Courts decision laying down to the contrary.
5. Inasmuch as, we are remanding the matter to the Commissioner(Appeals), we leave it to the appellant to produce all such decisions before him, in support of their contention. Needless to say that a copy of the report received by the Commissioner(Appeals) and relied upon by him would be provided to the appellant with an opportunity to them to contest the same.
6. Stay petition as also appeal get disposed of in above manner.
(Order pronounced and dictated in open court)
B.S.V.MURTHY TECHNICAL MEMBER ARCHANA WADHWA JUDICIAL MEMBER
Raja.
3
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