RAJDHANI SECURITY SERVICES Vs. COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) AFTER hearing both sides duly represented by Shri V.R. Mori, learned Consultant for the appellant and Shri R.S. Sangia, learned SDR for the revenue, we find that the Commissioner (Appeals) has rejected the appeal filed before him on the ground of time bar, by observing that the impugned order was dispatched from the office of the lower authority on 12 -10 -2007 under the cover of Registered Post Acknowledgement Due (RPAD). As such, it has to be presumed that the same was received by the appellant well in time. The appeal filed on 6 -4 -2009 is after more than 17 months from the date of communication of the impugned order i.e., 12 -10 -2007 and as such is barred by limitation. He also referred to the provisions of Section 37(C) of Central Excise Act, 1944 regarding service of decisions orders etc., which have been made applicable to the service tax in terms of Section 83 of the Act. As such, he has recorded that inasmuch as the, impugned order was sent by RPAD, the service of the order has to be held to be completed in terms of said Section 37.

(2.) HOWEVER , we find that the limitation for filing appeal starts from the period of communication of the order and not by sending order itself. It is not the revenue's case that the acknowledgement due under the cover of which the impugned order was sent stands received back by them. There is also no evidence received from the Postal department to show that the order stand delivered to the appellant. Learned advocate appearing for the appellant has relied upon the Tribunal's decision in case of Shree Prakash Textile (Guj.) (P.) Ltd. v. CST [Final Order No. A/2356/WZB (Ahd.) of 2009, dated 9 -11 -2009], wherein in identical situation, it was observed as under:

(3.) STAY petition as also appeal gets disposed of in above manner.