Custom, Excise & Service Tax Tribunal
M/S Usha Singh vs Cgst Varanasi on 4 May, 2026
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
ALLAHABAD
REGIONAL BENCH - COURT NO.II
Service Tax Appeal No.70058 of 2026
(Arising out of Order-in-Appeal No.115/ST/Appl/Alld/2025 dated 17/07/2025
passed by Commissioner (Appeals) Customs, Central Excise & Service Tax,
Allahabad)
Pro.Ms. Usha Singh, .....Appellant
(Renu Sagar, Sone Bhadra-231218)
VERSUS
Commissioner of Central Excise &
CGST, Allahabad ....Respondent
(38, M.G. Marg, Civil Lines, Allahabad=211001) APPEARANCE:
Shri Madhukar Anand, Advocate & Shri Ranjeet Kumar, Advocate for the Appellant Smt Chitra Srivastava, Authorised Representative for the Respondent CORAM: HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) FINAL ORDER NO.70140/2026 DATE OF HEARING : 04 May, 2026 DATE OF DECISION : 04 May, 2026 SANJIV SRIVASTAVA:
This appeal is directed against Order-in-Appeal No.115/ST/Appl/Alld/2025 dated 17/07/2025 passed by Commissioner (Appeals) Customs, Central Excise & Service Tax, Allahabad. By the impugned order following has been held:-
"Before going to the merit of the issue some relevant provisions are required to be dealt. In this regard it is observed that under Section 85(3A) of the Act -
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 Service Tax Appeal No.70058 of 2026 2 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.
Further as per Rule 8 of Rule-
(1) An appeal under Section 85 of the Act to the [Commissioner] of Central Excise (Appeals) shall be in Form ST-4.
(2) The appeal shall be filed in duplicate and shall be accompanied by a copy of order appealed against.
Section 35F of the Central Excise Act 1944 states that certain percentage of duty demanded or penalty imposed has to be deposited before filing appeal. The relevant portion of the same is given as under-
The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal-
(i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in rank than the Principal Commissioner of Central Excise or Commissioner of Central Excise;
(ii) against the decision or order referred to in clause
(a) of sub-section (1) of Section 35-B, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against;
Service Tax Appeal No.70058 of 2026 3
(iii) against the decision or order referred to in clause (b) of sub-section (1) of Section 35-B, unless the appellant has deposited ten per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of the decision or order appealed against:
Provided that the amount required to be deposited under this section shall not exceed Rupees Ten crores:
Provided further that the provisions of this section shall not apply to the stay applications and appeals pending before any appellate authority prior to the commencement of the Finance (No. 2) Act, 2014. 5.2 I have carefully gone through the case records, and find that the appeal has been filed on व्यापित 27.06.2024 against the impugned order dated 25.09.2023. The appellant in the ground of appeal has submitted the date of communication of impugned order to be on 13.06.2024.
In order to ascertain to status of communication the letter dated 08.07.2025 was written to the jurisdictional formation to intimate the mode/medium/acknowledgment of communication, however no reply was received. I find that there has been inordinate delay in filing the appeal. The department makes communication through speed post which normally takes two to three days to reach the recipient. However, in the instant case if the gestation period of 2-3 days is deducted, still it is far behind the stipulated time line given under section 85(3A) of the Act. Thus I find that the appeal is hit by period of limitation and is time barred.
5.3 I also note that the appellant has not made pre-deposit in compliance of section 35F of the Central Excise Act 1944 (made applicable to service tax under section 83 of the Finance Act 1994). Section 35F of the Central Excise Act, Service Tax Appeal No.70058 of 2026 4 1944, mandates a pre-deposit of 7.5% of the duty demanded or penalty imposed (or both) for filing an appeal before the Commissioner (Appeals), subject to a ceiling of Rs. 10 crores. This requirement, effective from 06.08.2014, as amended by the Finance (No. 2) Act, 2014, is a statutory condition for the appeal to be maintainable. Since the appeal has been filed after effective date of 06.08.2024 hence its non-compliance renders the appeal liable for rejection, as the Appellate Authority is statutorily barred from entertaining it.
6.0 In view of the foregoing, I reject the appeal on the ground of being time barred. Also the appeal is not maintainable due to non-compliance of section 35F of the Central Excise Act 1944. Accordingly, the appeal is disposed of in above terms."
2.1 Appellant having GSTIN No.09FSHPS2976D2Z6 are engaged in providing taxable services under the provisions of CGST Act, 2017. They were not registered under the Finance Act, 1994 for providing taxable services prior to switchover from CGST to GST on 01.07.2017.
2.2 An information was received from the Income Tax showing huge receipts towards service in respect PAN -FSHPS2976D. On the basis of such information, revenue authorities were of the view that the said PAN has short paid service tax as detailed in table below:-
Period Receipts against Service Tax (including Cess Services % Payable Paid Short Paid 01.04.2017 to 30.03.2016 4832077 15 724812 0 724812 2.3 Inquiries were initiated and summons/ letters dated 19.05.2022 and 13.07.2022 were issued to the appellant, which were never responded by the appellant. 2.4 Show cause notice dated 05.08.2022 was issued to the appellant asking him to show cause as to why:-
"(i) An amount of Service Tax (including applicable cesses) Rs. 724812/- (Rupees Seven lakh twenty four thousand eight hundred twelve only) not paid during the period Service Tax Appeal No.70058 of 2026 5 should not be demanded and recovered from them under Section 73 (1) of the Finance Act, 1994.
(ii) Interest at appropriate rate on the above demanded amount should not be demanded and recovered from them under Section 75 of the said Act ibid.
(iii) Penalty should not be imposed upon them under Section 78 of the Finance Act 1994, as amended, for suppression of facts with intent to evade the payment of service tax.
(iv) Penalty should not be imposed upon them under Section 77(1) (a) of the Finance Act, 1994 for contravention of section 69 of the Act read with Rule 4 of the Service Tax Rules. 1994.
(v) Penalty should not be imposed upon them under Section 77(1) (c) of the Finance Act, 1994 for contravention of provisions of Rule 5A (2) of the Service Tax Rules, 1994.
(vi) Penalty should not be imposed upon them under Section 77(2) of the Finance Act, 1994 for violation of Section 70 of the Finance Act, 1994 read with Rule 7 of Service Tax Rules, 1994 by not filing the ST-3 Returns to the department."
2.5 The said show cause notice was not responded nor did anybody appear for personal hearing. The show cause notice was adjudicated ex-parte as per the Order-in-Original No.940- ST/2023 dated 25.09.2023 by holding as follows:-
"ORDER
(i) I confirm the Service Tax (including applicable Cess) demand of Rs.724812/- (Rupees Seven lakh twenty four thousand eight hundred twelve only) under section 73(2) read with section 73(1) of the Finance Act, 1994.
(ii) I order for recovery of interest under Section 75 of the Finance Act, 1994 at appropriate rate on the confirmed amount of service tax as mentioned at (i) above.
(iii) I impose a penalty of Rs.724812/- (Rupees Seven lakh twenty four thousand eight hundred twelve only) upon the Service Tax Appeal No.70058 of 2026 6 party under Section 78 of the Finance Act, 1994. The party shall be eligible for reduced penalty specified in second and third proviso to Section 78 of the Act, subject to fulfillment of conditions specified therein as mentioned in para 6.5 above.
(iv) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(1) (c) of the Finance Act, 1994 for contravention of provisions of Rule 5A (2) of the Service Tax Rules, 1994.
(v) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(1) (a) of the Finance Act, 1994 for contravention of section 69 of the Act read with Rule 4 of the Service Tax Rules, 1994.
(vi) I also impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(2) of the Finance Act, 1994 for contravention of provisions of Section 70 of Act read with Rule 7 of the Rules."
2.6 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been dismissed as per the impugned order referred in para 1 above.
2.7 Aggrieved appellant have filed this appeal. 3.1 I have heard Shri Madhukar Aanand, Advocate for the appellant and Smt Chitra Srivastava, Authorized Representative for the revenue.
3.2 Arguing for the appellant learned Counsel submits that-
Appellant was duly registered under Service Tax vide Registration No.FSHPS2976DS0002 and ST-3 return for April-June 2017 was filed on 12.08.2017. They were registered in Range Chapra Division Muzzafarpur Commissionerate Patna. There registered address was Umanagar Sandha.
Service Tax of Rs.2,05,448/- was already paid through GAR-7 challan before due date in respect of Service provided during the period of dispute and duly reflected in their ST-3 return.
Service Tax Appeal No.70058 of 2026 7 The alleged turnover of Rs.48,32,077/- pertains to GST period and not taxable under Service Tax.
It is very interesting that the investigation related to evasion of Service Tax was forwarded to CGST & Central Excise Division Mirzapur (The impugned SCN issuing authority) whereas all the data related to assessee were already available at Muzaffarpur Division of Patna Commissionerate, where the appellant was registered. It has been strongly claimed that the order was received from CGST & CE Department on 13.06.2024 through email, when the appellant contacted to the department after the appellant received a recovery order dated 06.06.2024 through the Email. The appeal was therefore filed within a period of two months from the date of receipt of the decision.
The Order-in-Original dated 25.09.2023 was never served through speed post or any other mode of service. The Appellant received the copy only on 13.06.2024 through official departmental email upon inquiry after receiving recovery intimation on 06.06.2024. As the order was never served by the revenue authorities through post upon the appellant, the order dismissing the appeal is bad in law and needs to be set aside. Even on merits there is no case for revenue as appellant was registered with the Department at Muzaffrpur and had paid service tax due in respect of the services provided.
3.3 When the matter was listed on 18.03.2026 following observations were made:-
"After hearing some time, I find that dispatch records of Order-in-Original and show cause notice is required for perusal.
2.0 Accordingly, Learned Authorized Representative appearing for the revenue is directed to call for the dispatch records of Order-in-Original and show cause notice from the concern jurisdictional office.
Service Tax Appeal No.70058 of 2026 8 3.0 Taking note of the above, matter is adjourned to 13.04.2026."
On 13.04.2026 following observations were made:-
"Documents called for as per order sheet dated 18.03.2026 have not been received, though the details along with the order sheet dated 18.03.2026 were communicated by the AR Office on 24.03.2026 to the concern jurisdictional office.
2.0 Awaiting to the said response, matter is adjourned to
04.05.2026. However, it is made clear, if the documents are not provided before the next date of hearing, adverse inference will be drawn against the jurisdictional revenue authorities after hearing the appellant. 3.0 Learned Authorized Representative appearing for the revenue is directed to forward a copy of this order sheet to the concern jurisdictional office.
4.0 Taking note of the above, matter is adjourned to 04.05.2026."
3.4 In response of above directions Learned Authorized Representative while reiterating the findings recorded in the orders of the lower authorities, reproduces the response received from the jurisdictional authorities which is reproduced below:-
Service Tax Appeal No.70058 of 2026 9 Service Tax Appeal No.70058 of 2026 10 3.5 Authorized representative on the merits of the case re-
iterated the findings recorded in the impugned order.
4.1 I have considered the impugned orders along with the submissions made in appeal and during the course of argument.
4.2 It is interesting to note that the address mentioned on the Order-in-Original is as follows:-
M/s Usha Singh, Renusagar, renusagar, renusagar, Sonebhadra-231218 Whereas the postal receipt shows the address as:-
"To: Usha Singh, Roberts Ganj-231216 4.3 On perusal of the above, it is evident that neither the address of the appellant mentioned on the Order-in-Original is correct and complete or even matching with the address mentioned on the postal receipt of the Indian Post Office provided by the revenue authorities. The address in Order-in- Original is as „Renusagar, renusagar, renusagar, Sonebhadra- 231218‟, address mentioned on the postal receipt is „Roberts Ganj-231216‟. The fallacy of the entire argument in the impugned order is clearly evident. From the initiation of inquiries, investigation all correspondences including show cause notice and Order-in-Original, have been forwarded to some imaginary address of the appellant which do not exists. Even the postal receipt do not confirm with the address mentioned on the show cause notice and the Order-in-Original. In such a situation how can it be even presumed that order in original was ever served on the appellant through post as claimed by the revenue. Revenue stating that the order has never received back undelivered, is for them to investigate and find out to whom they have posted the order by post and why it was never returned back, it was never send to the appellant. I am really at loss to understand as to what prompted the revenue to make correspondence with the appellant at this address when the Service Tax Appeal No.70058 of 2026 11 appellant was already registered with the service tax authority in Muzzafarpur Division of Patna Commissionerate. 4.4 I find force in the submissions made by the appellant that order in original was never served upon them by post. It was received only through e-mail as referred by the Counsel and thereafter within two months of receipt, appeal was filed before the Commissioner (Appeals). The impugned order has taken contrary view without even a proper verification though the impugned order records that first appellate authority has called for the proof of dispatch and delivery of order in original from the jurisdictional authorities, the presumption of dispatch and delivery was made in absence of any response from the department. Thus this order cannot be said to be in accordance with the known principle of law and needs to be set aside. 4.5 I also find that even the show cause notice has been issued without any verification. Even the documents from Income Tax has not been looked into. If only 26AS was looked into, the address mentioned on form 26AS would have at least given the correct address of the appellant. Form 26AS of the appellant is reproduced below:-
Service Tax Appeal No.70058 of 2026 12 4.6 Further, the appellant has also enclosed their ST-3 return filed with the jurisdictional authorities as per which they have paid service tax in respect of services provided during the said period. They have also provided the reconciliation of their Service Tax Appeal No.70058 of 2026 13 turnover with as per their ST-3 return, GST Returns and 26AS as indicated in the tables below:
Service Tax Appeal No.70058 of 2026 14 4.7 From perusal of the above, I observe that there is no service tax demand outstanding against the appellant for the period April to June, 2017. The entire amount of turnover on which demand has been made was the GST turnover for the period 01.07.2017 to 31.03.2018 against the payment of GST would have been made. In any case demand of GST an not have been made in these proceedings.
4.8 I find that show cause notice and order in original has been issued without have any jurisdiction to make the demand and also without even simple basic verification of any of the documents.
4.9 Accordingly, I do not find merits in this demand, though I find that Commissioner (Appeals) has not rendered any finding on merits, still I am inclined to set aside the demand, as the show cause notice itself has been issued without any jurisdiction and appellant was paying service tax in the jurisdiction where they were registered.
4.10 In view of the above, impugned order lacks merit and the same is set aside.
5.1 Appeal is allowed.
(Dictated and pronounced in open court) (SANJIV SRIVASTAVA) MEMBER (TECHNICAL) akp