M/s Ficus Pax Private Limited @APPELLANT @Hash Principal Commissioner (Appeals), CGST & Central Excise, Indore @RESPONDENT

Rachna Gupta, J

The present appeal has been filed to assail the Order-in-Appeal No. 59/2023-24 dated 30.05.2023 vide which the Commissioner (Appeals) has rejected the appeal before him on the grounds of limitation.

The facts, in brief relevant for present adjudication are as follows:

2.1 The appellant herein is registered with the service tax department and was also availing the benefit of Cenvat credit on inputs and capital goods in terms of Cenvat Credit Rules, 2004. Based on the audit conducted for the period March 2015 to June 2017 that the service tax of an amount of Rs. 3,95,077/- and Rs. 5,81,250/- along with the amount of interest proportionate in terms of Section 75 of Finance Act, 1994 and the proposal for imposition of penalty in terms of Section 78 of the Act. A show cause notice No. 58/2020-21 dated 23.12.2020 was served upon the appellant. The proposal was confirmed vide the Order-in-Original No. 15/2021-22 dated 25.01.2022. Being aggrieved of the said order that the appeal before Commissioner (Appeals) and was filed on 17 April, 2023. Keeping in view the delay in filing the said appeal which was much beyond the period of 60 days + 30 days as per Section 85 of Finance Act, 1994, the Commissioner (Appeals) dismissed the appeal on the ground of limitation. Being aggrieved, the appellant is before this Tribunal.

I have heard Ms. Nikita Jaju, learned Advocate for the appellant and Shri Viswajeet Saharan, learned Authorized Representative for Revenue.

Learned counsel for the appellant has mentioned that the order in original dated 25.01.2022 was never received by the appellant. It was only the recovery notice which was received on 15.02.2023 that too, by e-mail. Pursuant to the same, the appellant had requested the department to provide the copy of order in original and the same was provided to the appellant on 24.02.2023. After getting the said order, the appeal was filed on 17.04.2023. Resultantly, there actually has occurred no delay in filing the impugned appeal. The order is accordingly prayed to be set aside.

While rebutting the said submissions, learned Departmental Representative has impressed upon no infirmity in the order under challenge. It has been submitted that after the appeal was filed before Commissioner (Appeals), the department collected the proof of service of the order in original upon the appellant. The Commissioner (Appeals) itself, in the impugned order, has made the proof of service as the part of the order affixing the scan copy of the document showing acknowledgement about impugned order in original dated 25.01.2022 to have been received on 04.02.2022. It is further submitted that department had never received any request from the appellant for providing the copy of order in original nor such request has been placed on record before this Bench also. With these submissions, learned Departmental Representative has prayed for the dismissal of the appeal.

In rebuttal thereto, learned counsel has mentioned that the name of the person mentioned in the acknowledgment document produced by the postal department, is not the appellant’s authorized representative. In fact, the person could never been traced by the appellant. The affidavit of head of Pithampur plant is placed on record to this effect. Learned counsel has also relied upon the decision in the case of Saral Wire Craft Pvt. Ltd. Vs. Commr. of Cus., C.Ex. and Service tax reported in 2015 (322) ELT 192 (SC) wherein it has been held that the canteen boy is not the authorized person to receive the process. With these submissions, once again, the impugned order is prayed to be set aside, and appeal is prayed to be decided even on merits in favour of the appellant.

Having heard the rival contentions, foremost I peruse Section 85 of the Finance Act, 1994 which deals with the time limit where under the appeals before the Commissioner (Appeals) may be preferred. Sub clause 3(A), with the proviso thereof, reads as follows:

“3(A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.”

The perusal makes it abundantly clear that the Commissioner (Appeals) is being vested with the power to condone the delay which may occur while filing the appeal before him, only for further period of one month (30 days) over and above the period of two months during which, otherwise, the appeal would have been filed. The present appeal apparently and admittedly has been after a delay of more than 12 months from the date of receipt of order-in-original as shown in the document received from Postal Department. Keeping in view the said statutory mandate of Section 85(3A) of Finance Act, 1994, I do not find any infirmity in the impugned order where the Commissioner (Appeals) has rejected the present appeal on the grounds of limitation. I draw my support from the Hon’ble Apex Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur reported in 2008 (221) ELT 163 (SC) when the Hon’ble Court held that Commissioner (Appeals) has no power to condone the delay beyond the period prescribed under Section 35 of Central Excise Act, 1944. This Section is para materia to Section 85 of Finance Act, 1994.

Coming to the case law relied upon by the appellant I foremost peruse the proof of service as has been dealt with by the Commissioner (Appeals). The perusal reveals that the copy of order in original has duly been delivered by the postal department at the address of the appellant with a proper signatory receiving the said process and the mobile number of said recipient. The said document is the sufficient proof for the order in original to have been delivered. I draw my support from Section 27 of General Clauses Act, 1897 which reads as under:

Meaning of service by post - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of “post”.

Hence presumption arises in favour of service with reference to letter sent by post unless rebutted. For letter sent by other modes similar presumption arises under Section 114 of Evidence Act, 1872, though rebuttable.

To rebut the said presumption one affidavit only is placed on record. To my opinion same is not sufficient to falsify the said service report for the following reasons:

(i) The order was delivered at the same address at which the show cause notice was received by the appellant.

(ii) Appellant filed reply to said show cause notice.

(iii) Appellant’s representative attended the personal hearing before original adjudicating authority.

(iv) Appellant didn’t put any effort to know the status of proceedings before original adjudicating authority till the recovery notice was received.

Otherwise, also I do not find any request from the appellant even post receiving the recovery notice dated 15.02.2023 vide which appellant would have requested the department for the status/copy of the order in original. It is also observed that even after receiving the copy of order in appeal admittedly, on 24.02.2023 the present appeal has been filed at the period of two months from the said date. The said conduct is insufficient to reflect the due diligence on part of the appellant specifically when appellant was aware of the impugned proceedings. The case law relied upon by the appellant is held not applicable to the facts of the present case as it has discussed the situation where the process was delivered by hand (Dasti). On the contrary, in the present case the process has been delivered by the postal department. The oral testimony is not sufficient to falsify the said documentary proof. The appellant has not placed on record any other document to plead the bona fide.

In the given circumstances, and the above discussed statutory mandate vis-à-vis Commissioner (Appeals) and also the statutory provisions discussed above, I do not find any infirmity in the order under challenge and do not see any reason to still set aside the same. Resultantly, the order is upheld and the appeal is ordered to be dismissed.

(Dictated & pronounced in open Court)