Uttarakhand High Court
Ms Central Industrial Security Force vs Commissioner Of Central Excise And ... on 27 April, 2017
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 3145 of 2016
M/s Central Industrial Security Force .........Petitioner
Versus
Commissioner of Central Excise and Service Tax
........Respondent
Present:- Mr. Aditya Kumar, Mr. Kanti Ram Sharma, Mr. Pravesh Bahuguna,
Advocates for the petitioner.
Mr. H.M. Bhatia, Advocate for the respondent.
Hon'ble Sudhanshu Dhulia, J. (Oral)
Petitioner has filed the present writ petition challenging the order dated 18.02.2016 passed of Commissioner (Appeals), Central Excise Appeals-1, Meerut, which had dismissed petitioner's appeal on the grounds of limitation.
2. The petitioner before this Court was an assessee under the Central Excise Act and according to the respondent was liable to pay service tax as it was providing the services to the Tehri Hydro Development Corporation Private Limited. Ultimately an order was passed by the adjudicating authority i.e. the Joint Commissioner, Customs & Central Excise, Dehradun on 03.07.2015 ordered the petitioner to pay a service tax of Rs.17,44,259/- (Rupees Seventeen Lakhs Forty Four Thousand Two Hundred Fifty Nine Only), for the period from April, 2009 to June, 2012 and a penalty of similar amount of Rs.17,44,259/- (Rupees Seventeen Lakhs Forty Four Thousand Two Hundred Fifty Nine Only), along with the interest. This order of the Joint Commissioner was challenged by the petitioner before the appellate authority i.e. the Commissioner (Appeals), Central Excise Appeals-I, Meerut, admittedly beyond the limitation period. It is an admitted fact that the period of filing an appeal is two months from the date of the order and there was a delay of 103 days.
3. For our purposes, Section 85 (3-A) of the Finance Act would be relevant, which reads as under:-
2"Section 85. Appeals to the Commissioner of Central Excise (Appeals).-
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(3-A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under the Chapter:
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month."
4. A bare perusal of the aforesaid provision shows that the Commissioner (Appeals) does not have powers to condone the delay beyond a period of 90 days.
5. This writ petition itself was filed before this Court way back in the year 2016.
6. In this matter, counter affidavit has been filed by the respondent. Learned counsel for the petitioner states that he does not want to file rejoinder affidavit in the matter.
7. Heard the learned counsel for the parties.
8. The petitioner is a creature of a statute and is bound to provide security to Government Institutions. Petitioner has also relied upon various decisions of different Tribunals where the petitioner was not liable to pay service tax. Considering the nature of service being provided by the petitioner, the learned counsel for the petitioner Sri Aditya Kumar, would argue that he has a very good case on merit and the reason for filing the appeal belatedly was that there is a statutory provision of depositing 7.5% of the amount, which could not be collected in time. This amount was ultimately deposited with the appellate authority belatedly, however, on the ground of limitation the appeal of the petitioner was rejected.
9. Learned counsel for the respondent, on the other hand, would argue that under Section 86 of the Finance Act, the petitioner 3 has an alternative remedy of filing an appeal before the appellate authority.
10. However, considering the peculiar facts and circumstances of the case, this Court is of a considered view that the delay was bonafide. Considering the nature of the case, the interest of justice would demand that an adjudication be done on merits, the writ petition is allowed. Order dated 18.02.2016 is hereby set aside. The matter is remanded back to the concerned authority, to consider the matter afresh and decide the same on its merit.
(Sudhanshu Dhulia, J.) 27.04.2017 Ankit/