Appeal Can’t Be Dismissed as Time-Barred Without Proof of Service Of Order-In-Original: CESTAT

The Allahabad Bench of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has held that an appeal cannot be rejected as time-barred in the absence of proof of delivery of the Order-in-Original as mandated under Section 37C(1)(a) of the Central Excise Act, 1944. The bench of P.K. Choudhary (Judicial Member) has observed that Section 37C(1)(a) explicitly requires service by registered post or speed post with acknowledgment due as proof of delivery. It was incumbent upon the Revenue to produce evidence of delivery or acknowledgment to establish valid service. The appellant was engaged in providing earthwork and water pipeline services to the State Government during the relevant period. According to the appellant, the services were exempt from Service Tax under Notification No. 25/2012-ST dated June 20, 2012. Consequently, no Service Tax returns were filed. The controversy arose when, on December 25, 2024, the appellant received a communication initiating recovery proceedings pursuant to an Order-in-Original dated May 29, 2023, passed by the Deputy Commissioner, CGST, Division-I, Ghaziabad. The appellant contended that it had never received any show cause notice, adjudication order, or any communication relating to the proceedings culminating in the said Order-in-Original. Upon learning of the recovery action, the appellant sought a certified copy of the order on January 30, 2025. A photocopy of the Order-in-Original was eventually furnished on December 23, 2024. Subsequently, the appellant filed an appeal before the Commissioner (Appeals) on February 25, 2025. However, the appeal was dismissed solely on the ground of limitation, prompting the present appeal before the Tribunal. The principal issue before the Tribunal was whether the appeal could be dismissed as time-barred when the Department failed to establish proper service of the Order-in-Original in accordance with Section 37C(1)(a) of the Central Excise Act. The Department contended that the Order-in-Original had been dispatched via Speed Post on May 31, 2023, and since it was not returned undelivered, it should be presumed to have been served. The appellant, however, argued that mere proof of dispatch does not amount to proof of service. It was submitted that the Department had not produced any acknowledgment due or other documentary evidence establishing actual delivery, as required under Section 37C(1)(a). The Tribunal observed that the Commissioner (Appeals) had dismissed the appeal on the presumption that the Order-in-Original had been served, merely because it was dispatched and not returned undelivered. The Tribunal noted that in the absence of proof of delivery, the order cannot be deemed to have been served. Relying on decisions of the Rajasthan High Court, Gujarat High Court, and the Supreme Court in Saral Wire Craft v. CCE & ST, the Bench held that presumption of service without proof of delivery is unsustainable in law. Accordingly, the Tribunal ruled that the appeal could not be held to be barred by limitation. The Tribunal further observed that although the appellant received the Order-in-Original on December 23, 2024, the appeal before the Commissioner (Appeals) was filed on February 25, 2025—beyond the statutory period of 60 days but within the condonable period of 30 days. The delay was calculated at three days beyond the initial 60-day period. Exercising its discretion, the Tribunal condoned the delay of three days. Setting aside the impugned order of the Commissioner (Appeals), the Tribunal remanded the matter for fresh adjudication on merits. It directed the Commissioner (Appeals) to decide the appeal after granting proper opportunity of hearing to the appellant and without revisiting the issue of limitation. “All issues are kept open,” the Tribunal clarified while allowing the appeal by way of remand. Case Details Case Title: M/s Akshita Enterprises Versus Commissioner, CGST, Ghaziabad Case No.: Service Tax Appeal No.70049 of 2026 Date: 16.02.2026 Counsel For Appellant: Ajay Yadav, Advocate Counsel For Respondent: Santosh Kumar, Authorized Representative Click Here To Read Order Read More: Parallel GST Adjudication by Intelligence Wing Without Proper Jurisdiction Invalid: Kerala High Court

Appeal Can’t Be Dismissed as Time-Barred Without Proof of Service Of Order-In-Original: CESTAT

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