Custom, Excise & Service Tax Tribunal
M/S. Horticulture Development ... vs Commr. Of Service Tax-Kolkata on 5 September, 2014
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
EAST REGIONAL BENCH : KOLKATA
Stay Petition No.241/2012
AND
Service Tax Appeal No.130/2012
(Arising out of the Order-in-Appeal No. 96/ST/KOL/2012 dated 06/03/2012 passed by the Commissioner of C. Ex. (Appeals), Appeal-I, Kolkata)
For approval and signature of:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
======================================================
1. Whether Press Reporters may be allowed to see :
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not ?
3. Whether Their Lordships wish to see the fair copy :
of the Order?
4. Whether Order is to be circulated to the Departmental :
Authorities ?
M/s. Horticulture Development Foundation
APPELLANT(S)
VERSUS
Commr. of Service Tax-Kolkata
RESPONDENT(S)
APPEARANCE
NONE (Adjournment letter)
FOR APPELLANT(S)
Sri K. Chowdhury, Supdt. (A.R.)
FOR THE RESPONDENT(S)
CORAM:
DR.D.M. MISRA, HONBLE JUDICIAL MEMBER
DATE OF HEARING & DECISION : 05/09/2014
ORDER NO. FO/A/75534/2014
Per DR.D.M. MISRA
None present for the applicant.
2. Heard the Ld. A.R. for the Revenue.
3. This is an application filed seeking waiver of penalty of Rs.1,50,000/-.
4. Ld. A.R. for the Revenue submits that the Ld. Commissioner (Appeal) has not decided the issue on merit but dismissed their appeal on the ground of delay of three months in filing the appeal before him. He submits that the appeal was filed by the applicant before Ld. Commr. (Appeal) after expiry of three months but within the condonation limit of three months. In the condonation application, the applicants had reasoned that due to filing of the appeal before wrong forum, the delay has occurred.
5. I find that the sole reason on which the Ld. Commissioner (Appeals) has dismissed the appeal is that the applicant by mistake filed an appeal before the Assistant Commissioner of Service Tax instead of before the Ld. Commissioner (Appeals).
6. Therefore, instead of deciding the stay application, it is proper to dispose of the appeal itself at this stage. Accordingly, after waiving the requirement of pre-deposit, I take up the appeal for disposal with the consent of both sides.
7. I find that the applicant had filed the appeal within the stipulated period of three months before the Assistant Commissioner of Service Tax against order-in-original No.22/ST/Div-III/Adjn/11-12 dated-12/07/2011. This fact is not in dispute. The Ld. Commissioner has rejected the appeal without condonation of the delay on the ground that in spite of being mentioned in the pre-amble of the impugned Order, the appellant had filed the appeal before wrong forum. I find that the reasons cited by the appellant for condonation of delay is based on well settled principle of law that filing of appeal before wrong forum within the stipulated time but resulted into delay before the proper forum in filing the Appeal, deserves to be condoned. In this connection, I find support from the judgment of this Tribunal in the case of Premchand Gokaldas Vs. Commr. of Service Tax, Ahmedabad reported in 2010 (17) S.T.R. 36 (Tri.-Ahmd.). In the result, the delay caused before the Ld. Commissioner is condoned. Consequently, the impugned order is set aside and the appeal is remitted to the Ld. Commr. (Appeals) for deciding the stay application as well as appeal on merit. Needless to mention that a reasonable opportunity of hearing be given to the applicant. All issues are kept open. Appeal is allowed by way of remand. S.P. disposed off.
(Dictated and pronounced in the open Court) Sd/- 15/09/2014 (D.M. MISRA) JUDICIAL MEMBER k.b/-
Service Tax Appeal No.130/2012 2