Nerumbally and Co Vs Commissioner of Service Tax (CESTAT Bangalore)
The appeal before the CESTAT Bangalore arose from the rejection of refund claims and subsequent dismissal of appeals on the ground of delay. The appellant, operating a hotel from premises rented from Karnataka State Road Transport Corporation (KSRTC), had paid service tax collected by KSRTC under “Renting of Immovable Property Service.” Contending that such tax was not applicable, the appellant filed refund claims amounting to Rs. 4,25,937 for January to December 2011 and Rs. 2,42,406 for March to July 2012. These claims were rejected by the adjudicating authority. The appellant then filed appeals before the Commissioner (Appeals), which were dismissed as time-barred. The appellant argued that the Orders-in-Original dated 20.08.2013 and 26.08.2013 were received only on 12.12.2013, and the appeals filed on 06.02.2014 were within the prescribed time under Section 85 of the Finance Act, 1994. The Commissioner (Appeals), however, treated the date of issue as the date of communication without verifying actual delivery. The Tribunal examined whether the orders had been communicated prior to 12.12.2013 and noted that the Department failed to produce evidence of such communication. In the absence of proof of delivery, the Tribunal found it appropriate to remand the matter. The case was sent back to the Commissioner (Appeals) with directions to verify the actual date of communication and provide the appellant an opportunity to present their case. Accordingly, the appeals were allowed by way of remand.
