Whether Commissioner Appeals has power to condone delay of 1.5 years in filing appeal?

PJ/CASE LAW/2015-16/2781

Case:-SARDHA TRAVELS VERSUS COMMISSIONER OF SERVICE TAX

Citation:-2015(37) S.T.R. 433(Mad.)

Brief Facts:-The appellant is engaged in operating staff buses under contracts to M/s. Ives Cotton Limited, Ranipet for pick up and drop of employees in various locations of the factory belonging to the above-said company. The above services provided by the appellant appear to fall under "Tour Operator Service". Since the appellant has not obtained Service Tax registration for the taxable service rendered under the category of "Tour Operators", has not paid the Service Tax and not filed ST returns for the period from 1-4-2004 to 31-5-2009. Therefore show cause notices were issued on 26-9-2009 and 12-11-2009 and the Lower Adjudicating Authority confirmed the demand of Service Tax of Rs. 7,39,676/- and Rs. 23,690/- under proviso to Section 73(1) of the Finance Act, 1994 (34 of 1994 with appropriate interest and penalty. Aggrieved by the said order, the appellant filed an appeal before the Commissioner of Central Excise (Appeals), who, by order, dated 10-4-2012, dismissed the appeal holding that order-in-original was pasted on the premises of the appellant on 6-10-2010, however, the appeal was filed on 7-12-2012, almost after a period of one year and six months, which is beyond the condonable period and hence the appeal is barred by limitation. Aggrieved by the same, the appellant has filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal. The Tribunal, on a perusal of the order impugned therein, held that the appeal was filed before the Commissioner (Appeals) almost after one year and six months after the adjudication order was passed. Hence, the Tribunal dismissed the appeal. Aggrieved by the same, the appellant is before this Court raising the substantial questions of law mentioned above.
(i) Whether the appellate tribunal was right in dismissing the appeal due to delay of 32 days has been caused in filling the appeal before the commissioner appeals?
(ii) Whether in the facts and circumstances of the case, the Appellate Tribunal was right in dismissing the appeal without considering the plea of limitation?

Appellant contentions:- The appellant has raised the following substantial question of law before the hon’ble court:-
"1. Whether in the facts and circumstances of the case, the Appellate Tribunal was right in dismissing the appeal when only there is a delay of 32 days has been caused in filing the appeal before the Com-missioner Appeals?
2. Whether in the facts and circumstances of the case, the Appellate Tribunal was right in dismissing the appeal without considering the plea of limitation?"

Respondent contentions:-Mr. T. Chandrasekaran learned Standing Counsel enterer appearance for the first respondent and filed a counter affidavit, wherein it was stated that the appeal was not filed in time before the Commissioner (Appeals) and therefore the present appeal is not maintainable.

Reasoning of Judgment:-On a perusal of the records, it is seen that the order-in-original was pasted on the premises of the appellant on 6-10-2010 under a Mahazar before twoindependent witnesses as required under Section 37C(b) of the Central Excise Act, 1944, since the appellant was not available in the premises and the premise was also locked. That is the effective date of service. However, the appellant construed as if the order was affixed only on 6-10-2011 and filed an appeal before the Commissioner (Appeals) along with a petition to condone the delay of 32 days. However, the Commissioner (Appeals) held that the date of service of summon was only 6-10-2010 and not 6-10-2011 and dismissed the appeal. The Tribunal relied on the decision of the Honourable Supreme Court reported in 2008 (221) E.L.T. 163 (S.C.) (Singh Enterprises v. CCE, Jamshedpur), which is followed by this Court in the decision reported in 2013-TIOL-168 HC-Mad = 2013 (32) S.T.R. 172 (Mad.) (M/s. Gopinath and Sharma v. CESTAT) and dismissed the appeal on the proposition that the Commissioner (Appeals) cannot condone the delay beyond the stipulated period. In the light of the above, the hon’ble are in full agreement with the above cited decisions and therefore, not inclined to entertain this appeal and accordingly, this Civil Miscellaneous Appeal stands dismissed and the order of the Tribunal stands confirmed. No costs.

Decision:-Appeal dismissed.

Comment:-The analogy of the case is that date when the order-in-original was pasted on the premises of the appellantis the effective date of service because the premises was locked. Consequently, there was delay of 1.5 years in filing appeal by the assessee from the date of pasting of order in original which was beyond the condonable powers of the Commissioner Appeals. Therefore, the appeal was dismissed due to delayed filing.

Prepared By:- Anash Kachaliya

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PJ/CASE LAW/2015-16/2781

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