Custom, Excise & Service Tax Tribunal
M/S Practice Strategic Communication ... vs Commissioner Of Service Tax Bangalore on 17 July, 2015
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: ST/Stay/21911/2014 in ST/21725/2014-DB Appeal(s) Involved: ST/21725/2014-DB [Arising out of Order-in-Appeal No. 157/2014 dated 20/02/2014 passed by Commissioner of Central Excise , BANGALORE-II( Appeal) ] For approval and signature: HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, 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? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes M/s Practice Strategic Communication India Pvt. Ltd No.43, 2nd Floor, HAL, 2nd Stage, 80 Feet Road, Indiranagar BANGALORE 560038. Appellant(s) Versus Commissioner of Service Tax Bangalore 1ST TO 5TH FLOOR, TTMC BUILDING, Above BMTC BUS STAND, DOMLUR BANGALORE - 560071. Respondent(s)
Appearance:
Mr. N. Anand, Advocate M/s RAVI SHANKAR & CHANDER KUMAR, ADVOCATES 504,4TH FLOOR, OXFORD TOWERS, NO.139, OLD AIRPORT ROAD, KODIHALLI, BANGALORE 560008 For the Appellant Mr. R. Gurunathan, A.R. For the Respondent Date of Hearing: 17/07/2015 Date of Decision: 17/07/2015 CORAM :
HON'BLE SMT. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE SHRI ASHOK KUMAR ARYA, TECHNICAL MEMBER Final Order No. 21667 / 2015 PER ARCHANA WADHWA After hearing both sides, we find that the Commissioner (Appeals) dismissed the appellants appeal on the point of limitation by observing that the Order-in-Original impugned before him was passed on 31.12.2012 and was sent to the appellant under Speed Post. As per the speed post receipt, the said order passed by the original adjudicating authority was received by the appellant on 12.1.2013. As such, the normal period of limitation of two months for filing the appeal against the said order stands expired on or around 12.3.2013 whereas the appeal has been filed by the appellant on 9.10.2013. The Commissioner (Appeals) has further held that inasmuch as he has the powers to condone only the delay of one month, in terms of the provisions of sub-section 3A of Section 85 of the Finance Act, 1994, the appeal is barred by limitation.
2. After hearing both sides, we find that there is no dispute about the legal issue involved. It is stands held by the Honble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur [2008 (221) E.L.T. 163 (S.C.)] that the Commissioner (Appeals) has no power to condone the delay beyond the delay prescribed in the statute. As such, the only issue required to be decided in the present appeal is as regards the date of receipt of the order passed by the Additional Commissioner.
3. Revenue has produced the above postal receipt showing the delivery of the order to the appellant on 12.1.2013 under the official stamp of the company and signature of the recipient. The appellant is not disputing the factum of the said postal receipt showing receipt of the order on 12.1.2013 but submits that the same was not delivered to a responsible person of the company. It is further contention of learned advocate that the order should have been sent by Registered AD, as held by various courts. The further plea of the appellant is that the said order received by a non-authorised person of the company was not handed over to them and subsequently, when the Revenue approached for recovery, they procured a photo copy of the same and filed the appeal within the limitation starting from the date of procurement of copy of the order.
4. Learned A.R. appearing for the Revenue vehemently opposes the said prayer of the advocate. He agrees that in case of dispute as regards the receipt of the order, the various High Court had held that the correct mode of despatch in terms of Section 33 (3) of the Act, is sending the order by Registered A.D. However, the said declaration of the law will not apply to the facts of the present case when there is no dispute about receipt of the order sent under speed post. Learned A.R. also relies upon the decision of the Honble High Court of Karnataka in the case of Phoenix Plasts Company vs. Commissioner of Central Excise (Appeals), Bangalore-I [2013 (298) E.L.T. 481 (Kar.)].
5. We have considered the submission made by both sides and have examined the postal receipt placed on record by the Revenue. As per the said postal document, the impugned order stands delivered to the appellant on 12.1.2013. Not only the signature of the recipient person stands appended on the said postal receipt but the seal of the company is also put on the same, showing thereby the said order stands received by an authorized person of the company. On the contrary, the appellant has not been able to show as to who was the person who actually put his signature and how the said person was not their employee and not authorized to receive the said speed post. We fully agree with learned A.R. that it is only when the actual receipt is in doubt then the fact of sending the impugned order by Registered A.D., would arise. When there is a proof of delivery of the order, the fact that it was sent by speed post and not by registered A.D, will not have any effect on the situation. As such, we conclude that the order-in-original having been received by the appellant on 12.1.2013, the appeal filed on 9.10.2013 is admittedly beyond the normal period of limitation and also beyond the condonable period of one month which the Commissioner (Appeals) is rested with power. As regards non-intimation of the order to the appellant by the person who has actually received the same, we find no merits in view of the decision of the Honble High Court of Karnataka in the case of Phoenix Plasts Company [2013 (298) E.L.T. 481 (Kar.)] laying down that even if the order-in-original stand served on the security agency who had not made the same available to his principal, the same will not curtail down the period of limitation.
6. In view of the above, we reject the appeal itself. Stay petition also gets disposed of.
(Pronounced in open court) (ASHOK KUMAR ARYA) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER /vc/