Service of order - Postal authorities weeding out Speed Post records - benefit of doubt to be extended to appellant - appeal not time-barred
AGAINST an O-in-A passed by the Commissioner(A) dismissing their appeal on the ground of time-bar, the appellant is before the CESTAT.
They submit that even though the order-in-original is dated 29/03/2010, they did not receive the order thereafter and subsequently received it on 11/02/2011 in person. And on 19/04/2011 they have filed the appeal before the lower appellate authority. Inasmuch as since they have filed the appeal within the period of three months from the date of receipt of the order, as prescribed in law, the dismissal of their appeal is not sustainable.
During the earlier hearing, the Bench had directed the department to produce evidence towards service of the order dated 29/03/2010 to the appellant.
In response to the said direction, the jurisdictional Commissioner informed the Bench that they had sent the order by speed post; however, the postal authorities have informed that the record of the speed post article is not available since the preservation period of old records are over.
The CESTAT observed -
"…In these circumstances, we have to give the benefit of doubt to the appellant and hold that service of the order was not completed earlier and the same was completed only on 11/02/2011 when the order was handed over to the appellant in person.
4. In this view of the matter, when the appeal has been filed within three months from the date of receipt of the order, the dismissal of appeal on account of time-bar is not sustainable in law. Therefore, we remand the matter to the lower appellate authority to decide the case on merits and pass an order in accordance with law."
Even otherwise, service by "Speed Post" has been legalized only now by the Finance Act, 2013 by making insertions in section 37C of the CEA, 1944.