Mere dispatch of Order does not imply the service and receipt of Order
In M/S. Ghadshyam Enterprises v. Commissioner Central Goods & Services Tax [Service Tax Appeal No. 50783 of 2020 (SM) dated August 18, 2021], M/S. Ghadshyam Enterprises (“the Appellant”) filed an appeal to assail the Order-in-Appeal No. 107/ST dated March 05, 2020 through which the appeal of the Appellant against the Order-in-Original (“OIO”) No. 69/2018 dated November 16, 2018 has been dismissed on the ground of being time-barred.
In the instant case, the Appellant contended that they have been registered for providing man-power recruitment/supply agency service. However, a Show Cause Notice (“SCN”) No. 2366 dated November 23, 2017 was served upon them proposing the recovery of service tax along with the interest and penalties. It was further submitted that the said SCN was not received by the Appellant till the aforesaid OIO was passed against them and the said order had also not come to the notice of the Appellant till the recovery proceedings were initiated against him. Thereafter, vide letter dated February 20, 2019 the copy of OIO was requested by the Appellant. The Appellant received the said copy on February 20, 2019. Furthermore, the Appellant submitted that he appealed before Commissioner (Appeals) (“the Respondent”) on April 18, 2019. It was submitted that since the appeal was filed within 2 months of receiving the copy of OIO, the Respondent has wrongly rejected the appeal as being barred by time.
As opposed to the contentions made by the Appellant, the Respondent argued that the Jurisdictional Assistant Commissioner had explicitly conveyed the dispatch of the OIO on the date of the said order itself and that there was no delay on their part.
After taking perusal of all the facts and evidences, the Customs, Excise and Service Tax Tribunal (“CESTAT”), New Delhi held that mere dispatch of the order cannot be considered as service. The period of 2 months for filing the appeal has to reckon not from the date of the order announced but from the date of receipt of said order by the Appellant in terms of Section 35 of Central Excise Act, 1944. Therefore, the appeal was accepted in the favor of the Appellant.
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