Nerumbally and Co Vs Commissioner of Service Tax (Appeals) (CESTAT Bangalore)
Limitation Period for Service Tax Appeal Starts from Receipt of Order, Not Dispatch Date; CESTAT Remands Service Tax Refund Appeal Because Department Failed to Prove Delivery of Order; Appeal Filing Deadline Cannot Be Calculated from Date of Issue Alone; No Proof of Communication Means Delay in Service Tax Appeal Requires Fresh Examination; Service Tax Refund Appeal Restored Because Communication of Order Was Not Verified; CESTAT Says Actual Receipt of Adjudication Order Determines Limitation for Appeal Filing.
The CESTAT Bangalore heard an appeal against Order-in-Appeal dated 21.08.2015 passed by the Commissioner of Service Tax (Appeals), Bangalore. The appellant was operating a hotel from premises rented from Karnataka State Road Transport Corporation (KSRTC). KSRTC had collected service tax from the appellant under the category of “Renting of Immovable Property Service” in addition to rent. The appellant claimed that the amount collected for running the hotel was not taxable under that category and accordingly filed refund claims amounting to ₹4,25,937 for January 2011 to December 2011 and ₹2,42,406 for March 2012 to July 2012. The adjudicating authority rejected the refund claims.
The appellant thereafter filed appeals before the Commissioner (Appeals), which were rejected on the ground of delay. The appellant contended that the Orders-in-Original dated 20.08.2013 and 26.08.2013 were actually received only on 12.12.2013 and the appeals filed on 06.02.2014 were within the limitation period prescribed under Section 85 of the Finance Act, 1994. It was argued that the Commissioner (Appeals) wrongly assumed that the date of issue of the orders was the date of communication without verifying actual service of the orders.
