HEMAMBIKA R. PRIYA

The present appeal has been filed by Supercity Infratech Private Limited¹the appellant to assail the Order-in-Appeal No. 86-ST/2019 dated 01.04.2021 wherein the Commissioner rejected the appeal on the grounds of limitation.

The brief facts of the case are that the appellant was a provider of "Construction of Residential Complex services. Following the receipt of intelligence of non-payment of Service Tax on customer advances by the appellant, a search was conducted on 21.09.2016. The reconciliation statements (2013-14 to 2016-17) revealed that the Appellant incorrectly claimed 75% abatement, whereas the rate was reduced to 70% effective 01.04.2016 via Notification No. 08/2016-ST. Despite multiple letters (January to September 2018, the appellant failed to provide ST-3 returns or Balance Sheets, forcing authorities to retrieve data from the Ministry for Corporate Affairs website.

Consequent thereto, the department issued a show cause notice dated 18.10.2018 demanding total service tax amount of Rs. 1,14,31,788/- after giving abatement of 75%. Interest was demanded under section 75 of the Finance Act.1994. The demand was raised invoking the extended period under the proviso to section 73(1) of the Finance Act, 1994. Penalties were proposed under sections 76, 77 and 78 of the Finance Act, 1944. The Order-in-Original No. 01/PA/ADC/GST/DE/2019-20 dated 30.04.2019 confirmed a demand of Rs. 1,14,31,788/- along with interest and penalties. Aggrieved, the appellant filed an appeal before the Commissioner (Appeals). Vide the impugned order, the Commissioner (Appeals) rejected the appeal on the ground of limitation. Hence, the appellant filed the present appeal.

Learned counsel for the appellant submitted that the appellant’s appeal had been rejected by the Commissioner (Appeals) on the ground that it was filed beyond the permissible limit as per section 85(3A) of the Finance Act, 1994. He submitted that the Order-in- Original was dispatched by speed post on 01.05.2019. The department had not produced any evidence regarding the service/receipt of the order by the Appellants. As per the appellant, the date of receipt of the Order-in-Original was 02.08.2019. In the absence of the department producing any evidence regarding actual date of receipt of the order by the appellant, the date indicated by the appellants, i.e. 02-08- 2019, should have been accepted and the appeal was filed on 09.08.2019, which was within time. As per section 83 of the Finance Act, 1994, the provisions of section 37C of the Central Excise Act, 1944, are applicable for service tax matters so far as they relates to service of notice or order. As per section 37C(1)(a) an order can be sent to a recipient through speed post but it should also provide for proof of delivery’. In the instant case, the Commissioner (Appeals) has presumed that the order was delivered within 5 days of the date of dispatch. This cannot be accepted as there can be no case of presumption of service when the law specifically talks of "proof of delivery", and the department has not been able to furnish any proof of delivery. Courts have held that proof of delivery is essential to establish as to when an order or notice was served on the recipient. In its absence, the date indicated by the assessee has to be accepted and cannot be presumed.

Learned counsel contended that the Commissioner (Appeals) had wrongly rejected the appeal of the appellant as time barred. Since the Order-in-Original had been received by the appellant only on 02.08.2019, the appeal filed on 09.08.2019 before the Commissioner (Appeals) was not time barred. The impugned order may, therefore, kindly be set-aside and the matter remanded back to the Commissioner (Appeals) for de-novo decision on merit of the case.

Learned Authorized Representative for the department submitted that the appeal must be rejected in limine as it was filed beyond the absolute statutory time l