Custom, Excise & Service Tax Tribunal
Aqsa Associates vs Cgst Lucknow on 4 August, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Service Tax Appeal No.70451 of 2024
(Arising out of Order-in-Appeal No.608-ST/APPL/LKO/2023 dated 22/08/2023
passed by Commissioner (Appeals) Customs, Central Excise & CGST,
Lucknow)
M/s AQSA Associates, .....Appellant
(C-2109/1, Indira Nagar, Lucknow-226016)
VERSUS
Commissioner of Central Excise &
Service Tax, Lucknow ....Respondent
(3/194, Vishal Khand, Gomti Nagar, Lucknow-226010) APPEARANCE:
Shri Dushyant Kumar, Consultant for the Appellant Smt Chitra Srivastava, Authorised Representative for the Respondent CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70573/2025 DATE OF HEARING : 04 August, 2025 DATE OF DECISION : 04 August, 2025 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal No.608- ST/APPL/LKO/2023 dated 22/08/2023 passed by Commissioner (Appeals) Customs, Central Excise & CGST, Lucknow. By the impugned order following has been held:-
"In this regard I find that Commissioner (Appeals) being creature of law is bound by the machinery provisions contained in the statute and cannot exceed the jurisdiction contained in the statute. Further, Commissioner (Appeals) also does not have power of writs, available only to the Hon'ble High Courts and the Supreme Court. Thus, without going into merit of the case, in the light of the statutory Service Tax Appeal No.70451 of 2024 2 provision as mentioned above, the appeal is rejected on the ground of being time barred."
2.1 Against the Order-in-Original 37/DC/CGST/LKO-II/22- 23 dated 28.04.2022, appellant filed appeal on 12.01.2023 before Commissioner (Appeals).
2.2 As the appeal has been filed beyond the statutory period of limitation and also the period which could have been condoned Commissioner (Appeal) dismissed the appeal, stating that the order in original was sent by the jurisdictional Deputy Commissioner on 29.04.2022 by post and the same was never returned, hence in terms of Section 27 of the general Clauses Act, would have been delivered to the appellant in reasonable time.
3.1 I have heard Shri Dushyant Kumar Consultant for the appellant and Smt. Chitra Srivastava, Authorised Representative for the revenue.
3.2 Arguing for the appellant learned Counsel submits that the aforesaid Order-in-Original dated 28.04.2022 claimed to have been dispatched to them vide Sl No 373 dated 29.04.2022 of Dispatch Register, was never received by them as Adjudicating had never send the copy of order by speed/registered post.
They received the said order only on 30.10.2022 only on the request made by them vide letter dated 20.09.2022. the appeal was filed by them before the First Appellate Authority only on 12.01.2023 within period of delay which could have been condoned by the First Appellate Authority. He prays for condoning the delay in filing the appeal before Commissioner (Appeals).
3.3 Learned Authorized Representative reiterates the findings recorded in the orders of the lower authorities.
Service Tax Appeal No.70451 of 2024 3 4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument.
4.2 I find that the Learned Commissioner (Appeals) has not decided the appeal before him on merits and dismissed the same on the ground of limitation.
4.3 When the matter was listed on 04.06.2025, the bench observed as follows:
"2. The learned counsel appearing on behalf of the Appellant submits that they were not supplied the copy of the Order-InOriginal dated 28.04.2022. They came to know about the same when the recovery notice dated 24.06.2022 was received by them. After this on 20.09.2022 they have submitted a letter to the Range Superintendent seeking copy of the Order-In-Original. The same was supplied to them on 31.10.2022. After this they have filed the appeal on 12.01.2023 which is within the condonable period of 30 days after the appeal period of 60 days. The claim made by the Appellant is required to verified. Therefore, I direct the office of the Authorized Representative for the Revenue to take up with the office of the Adjudicating Authority as to when the Order-In- Original dated 28.04.2022 was communicated to the Appellant, details of the dispatch register of the documents, copy of the speed-post details may be provided to enable the Bench to take a decision on this issue."
4.4 In response to the above observation made by the bench, Authorized Repesentative has produced the response received from the jurisdictional office, the copy of dispatch register enclosed with the said letter is reproduced below:
Service Tax Appeal No.70451 of 2024 4 Service Tax Appeal No.70451 of 2024 5 4.4 From the perusal of the above page of "Dak Dispatch Book" it is observed that vide entry no 373 dated 28.04.2022 the order in original in dispute was dispatched to the appellant and three more persons. The same dispatch number „373‟ is mentioned on the first page of order in original but the date of dispatch is shown as 29.04.2020. It is also not clear that for dispatching the said order in original, to the appellant by post as to what was the value of postage stamps affixed. The dispatch dak book shows that against the same dispatch number the order in original was dispatched to the appellant and also to Assistant Commissioner Review. Overwriting and corrections done in the Dak Dispatch Register also raise the doubt about the integrity of the said dispatch register.
4.5 Section 37 C of the Central Excise Act, 1944 reads as follows:
"37C. Service of decisions, orders, summons, etc.--
(1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,--
(a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgment due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), to the person for whom it is intended or his authorised agent, if any;
(b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended;
Service Tax Appeal No.70451 of 2024 6
(c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and
(b), by affixing a copy thereof on the notice-board of the officer or authority who or which passed such decision or order or issued such summons or notice.
(2) Every decision or order passed or any summons or notice issued under this Act or the rules made thereunder, shall be deemed to have been served on the date on which the decision, order, summons or notice is tendered or delivered by post or courier referred to in sub-section (1) or a copy thereof is affixed in the manner provided in sub- section (1).
4.6 This section provides the manner of service of orders etc., to the person concern concerned. From the Dak Dispatch Register it is not clear whether the order was not sent by registered post with acknowledgement due or by speed with proof of delivery or by courier approved by Central Board of Excise and Customs, or by personal delivery to the authorized representative of the appellant. In absence of any such evidence from the records produced and examined by me, I am not in position to hold that delivery of the order in original was made in the manner provided in the statute. It is settled position in law that if the statute provides a manner of performance of act, then it should be performed in that manner only. In the case of [] Hon‟ble Supreme Court observed:
"In Nazir Ahmed's case [L.R. 63 IA. 372.] the Judicial Committee observed that the principle applied in Taylor v. Taylor [[[1875] 1 Ch. D. 426, 431] to a Court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden, applied to judicial officers making a record under s. 164 and, therefore, held that magistrate could not give oral evidence of the confession made to him which he Service Tax Appeal No.70451 of 2024 7 had purported to record under s. 164 of the Code. It was said that otherwise all the precautions and safe- guards laid down in ss. 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that "it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves."
The rule adopted in Taylor v. Taylor [[1875] 1 Ch. D. 426, 431] is well recognised and is founded on sound principle. Its result is that if a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of th act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted."
4.7 Thus in view of any evidence to establish that the service of the Order-in-Original was effected in the manner specified by the statute, the Consultant appearing for the appellant is justified in asserting that as the order was actually received by the appellant on 31.10.2022 and the period of limitation would start to run from the said date.
4.8 Appellant filed the appeal on 12.01.2023 before the Commissioner (Appeal). Counting from the date of actual receipt of order in original by the appellant on 30.10.2022 the appeal was filed before Commissioner (Appeals) on 73 day, i.e. with a delay of about 12 days from the statutory period of limitation prescribed as per section 85 of the Finance Act, 1994. However, appeal has been filed within the condonable period of delay, and Commissioner (Appeal) is bound to consider the application for condonation of delay and if satisfied with the explanation tendered by the appellant should allow the same and hear the same on merits.
Service Tax Appeal No.70451 of 2024 8 4.9 As the impugned proceeds by the taking the date of dispatch as mentioned on the face of Order-in-Original and by application of Section 27 of General Clauses Act, I do not find any merits in the same as actual evidence of dispatch on 28/29/04/2022 could not be established. The impugned order, therefore deserves to be set aside.
5.1 Appeal is allowed and matter is remanded back to the Commissioner (Appeals) to decide on the application of condonation of delay in filing the appeal, and if the delay in filing the appeal is condoned he should decide the appeal on merits. 5.2 Since the matter is quite old, Commissioner (Appeals) should decide on the application for condonation of delay and the appeal within a period of three months from date of receipt of this order.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp