Filing of appeal in office situated on 5th floor instead of 7th floor is small procedural infraction
THE Office of Commissioner of Service Tax and Office of the CST (Appeals) are located in the same building but on different floors viz. 5th & 7th. Aggrieved by an order dated 06.12.2007 of the adjudicating authority, the appellant had filed an appeal in the office situated on the 5th floor rather than travelling in the ramshackle building for two more floors.
The Commissioner (A) in his order while dismissing the appeal mentioned that the appeal was filed only on 30.08.2011 against the O-in-O dated 06.12.2007 and the same was badly time barred. The appellant informed him that the appeal was filed on 13.02.2008 but unfortunately in the wrong office. The Commissioner (A) enquired with the office of the CST so as to ascertain the veracity of the claim made and then concluded as above.
The CESTAT after hearing both sides decided the case thus -
“6. On perusal of record, we find that appellant had in fact, filed the appeal and submitted the same in the office of Commissioner of Service Tax, Ahmedabad at 5th Floor while the office of the Commissioner of Service Tax (Appeals) is situated at 7th floor in the same building, Central Excise Bhawan. We find that the appellant had, in fact served a copy of such an appeal to the office of the Assistant/Deputy Commissioner, Service Tax and there is a signature of the person receiving such an appeal. In our view, such a small procedural infraction should not come in the way of substantive rights of the appellant for considering the appeal on merits. In our view, the first appellate authority has erred in not considering the appeal on merits but deciding the same on technicalities. Accordingly, we set-aside the impugned order and hold that appellant had in fact filed the appeal on 13.02.2008, which is within the period of limitation, may be before the wrong forum. We restore the stay petition and appeal in the files of Commissioner of Service Tax (Appeal) to its original number with directions to consider the same on merits and dispose the appeal after following the principles of natural justice.”
The appeal was accordingly allowed by way of remand.
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