M/s. Shri Om Prakash Sharma Versus CE & CGST, Udaipur
Service Tax
2019 (1) TMI 374 – CESTAT NEW DELHI – TMI
CESTAT NEW DELHI – AT
Dated:- 7-12-2018
Service Tax Appeal No. ST/53154/2018-ST [SM] – FINAL ORDER NO. 53434/2018
Service Tax
MRS. RACHNA GUPTA, MEMBER (JUDICIAL)
Present for the Appellant: Ms. Asmita Nayak, Advocates
Present for the Respondent: Ms. Tamanna Alam, D.R.
ORDER
PER: RACHNA GUPTA
The present appeal is against Order of Commissioner (Appeals) bearing No. 725 dated 06.07.2018.
2. It is submitted on behalf of the appellant that Commissioner (Appeals) has failed to accept the grounds as submitted before him specifically that the copy of order of Original Adjudicating Authority was received by the appellant only on 10th August, 2015. It is due to the said reason that the appeal was filed before Commissioner (Appeals) on 21st January, 2016 and that the same was well within the period of limitation but the Commissioner (Appeals) in sheer ignoran
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yond the said period of 90 days. Hence, Commissioner (Appeals) had no other option but to dismiss the appeal on limitation. Order is accordingly, prayed to be upheld.
4. After hearing both the parties and perusing the record, it is observed that the appellant is the sub-contractor of M/s. Siwal Builders & Developers. Initially an audit was conducted against the said main contractor. It is from the record recovered from M/s. Siwal Builders & Developers that the notices were sent to the appellant herein. The appellant's contention is that his address, as was available with the main contractor, was his old address and that he had shifted to a different place in Jaipur. The affidavit of the appellant to this effect is on record wherein it is deposed, in addition, that the appellant never received the impugned show cause notice. There is no proof of delivery/service by the Department. It is apparent from the Order-in-Original that the assessee did not file reply to the show cause notice no
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issioner (Appeals) that the order in Original was never communicated to him and that it was never served upon him in the way as is required under Section 37 C of the Central Excise Act. I opine that it was mandatory for Commissioner (Appeals) to look into the said aspect. The copy of Order-in-Original, apparently and admittedly, was received by the appellant only on 10th August, 2015. That too, it was not the certified copy. But still the Commissioner (Appeals) has held the appeal to be delayed for one year and 20 days. The period of limitation i.e. 60 days condonable by Commissioner (Appeals) for another 30 days has to reckon from 10.08.2015. Resultantly, Singh Enterprises (Supra) as relied by Department is not applicable to present facts. The finding of Commissioner (Appeals) is therefore opined to be wrong in view of the above observed circumstances.
7. The appellant herein has filed an affidavit deposing that the order got communicated to him only on 10.08.2015. While relying upon
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