Custom, Excise & Service Tax Tribunal
M/S Ddb Marketing Services Pvt. Ltd vs Cst, Delhi on 16 September, 2013
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing/decision: 16.09.2013 For Approval and Signature: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982? 2 Whether it should be released under Rule 26 of 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? Service Tax Stay No. 56448 of 2013 and Service Tax Appeal No. 56025 of 2013 (Arising out of order in appeal No. 241/ S.Tax/D-II/12 dated 01.01.2013 passed by the Commissioner (Appeals), Central Excise, Delhi-I). M/s DDB Marketing Services Pvt. Ltd. Appellants Vs. CST, Delhi Respondent
Appearance: Sh. P. K. Sahu with Sh Prashant Shukla, Advocates for the appellant Sh. Govind Dixit, DR for the Revenue Coram: Honble Mr. Justice G. Raghuram, President Honble Mr. Sahab Singh, Technical Member Final Order No. 57662/2013 Per: Justice G. Raghuram:
This is an assessees appeal preferred against the order dated 01.01.2013 of the Commissioner (Appeals), New Delhi. The appeal was rejected on the ground that it was filed with a delay of 1 year, 1 month and ten days; and that such abnormal delay cannot be condoned in exercise of the power and discretion of the Commissioner (Appeals) under Section 85(3) and the proviso thereto of the Finance Act, 1994. Curiously the ld. Commissioner (Appeals) also upheld the adjudication order and after rejecting the same on the bar of limitation.
2. Vide adjudication order dated 29.04.2011, the Joint Commissioner, Service Tax, Delhi confirmed a service tax liability of Rs. 11,33,614/- besides the stipulated cesses; directed recovery of interest and imposed penalty under Section 78 of the Act, for the assessee having provided Event Management Service . Aggrieved, the assessee preferred an appeal.
3. Before the appellate authority, in the grounds of appeal, the assessee specifically pleaded that the adjudication order dated 29.04.2011 was not received by the assessee initially and only a copy was received alongwith the recovery notice dated 13.06.2012 from the Assistant Commissioner, Service tax on 15.06.2012 and the appeal was presented on 22.08.2012. This statement in the memorandum of appeal is not disputed by Revenue i.e. that a copy of the adjudication order was received on 13.06.2012.
4. Para 5 of the order of the Commissioner (Appeals) however records that in order to verify the assessees contention regarding non receipt of the adjudication order, enquiries were caused with the Additional Commissioner, Service Tax, New Delhi who was asked to intimate despatch particulars of the adjudication order. In response to such query (the appellate order records), the Superintendent (Adjudication) New Delhi vide letter dated 18.12.2012 intimated the appellate Commissioner that the adjudication order was despatched on 05.05.2011 by speed post. A copy of the speed post booking slip sheet was also forwarded to the appellate authority. The ld. appellate Commissioner extracts the provisions of Section 85 of the Act. Sub-section 3 specifically enacts that an appeal could be presented within three months from the date of receipt of the decision or order of the adjudicating authority.
5. After extracting the provision of Section 85, the appellate authority notes that the adjudication order was despatched on 05.05.2011, and the appeal was filed on 15.06.2012, after a period of one year, one month and ten days. The statutory provision clearly enjoins that an aggrieved person is entitled to present an appeal within three months from the date of receipt of the decision/ order of an adjudicating authority. The conclusion by the appellate Commissioner that the adjudication order was despatched on 05.05.2011 but the appeal was filed on 15.06.2012 and therefore beyond the period of limitation, therefore discloses non-application of mind. The Commissioner (Appeals) ought to have based his conclusion as to limitation on the basis of the date of receipt of the adjudication order and not the date of despatch of the order. In the absence of any analysis and conclusion by the learned appellate Commissioner, identifying the date on which the adjudication order was received by the assessee, he could not have legitimately concluded that the appeal preferred on 15.06.2012 is beyond the period of limitation, since it was filed after a period of one year one month and ten days, from the date of despatch. The process of reasoning adopted by the Commissioner for computing the period of delay from the date of despatch is perverse, particularly since the ld. Commissioner had noticed the statutory provision under Section 85(3).
6. ld. DR Sh. Govind Dixit would endeavour to contend that provisions of General Clauses Act and certain decisions which go to show that a receipt of communication must be presumed on evidence of forwarding of a communication by post, would legitimise the filing of delay by the Commissioner (Appeals). We are not persuaded that a laconic non speaking conclusion of the Commissioner (Appeals) could be supported by reasons supplemented in oral argument before this Tribunal. As pointed out in Commissioner of Police, Bombay vs. Govardhandas Bhanji AIR (39) 1952 SC 16 Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actions and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. We are afraid that the appellate Commissioners silence cannot be supplemented by the ld. DRs speech.
7. As the ld. Commissioner (Appeals) has erred in considering whether the assessees appeal is barred by limitation in terms of the statutory provisions, we quash appellate order and remit the appeal to the Commissioner (Appeals) for denovo determination. As the appeal was rejected on the ground that it was presented beyond the period of limitation, there was no warrant for the Commissioner (Appeals) to uphold the adjudication order on merits. No costs.
(Justice G. Raghuram) President (Sahab Singh) Technical Member Pant