Gujarat High Court
Pal Engineering Works vs Commissioner Of Central Excise And ... on 19 August, 2016
Author: A.J. Shastri
Bench: Akil Kureshi, A.J. Shastri
C/SCA/6656/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6656 of 2016
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PAL ENGINEERING WORKS....Petitioner(s)
Versus
COMMISSIONER OF CENTRAL EXCISE AND SERVICE
TAX....Respondent(s)
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Appearance:
MR YH MOTIRAMANI, ADVOCATE for the Petitioner(s) No. 1
MR.DIVYESH G NIMAVAT, ADVOCATE for the Petitioner(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
and
HONOURABLE MR.JUSTICE A.J. SHASTRI
Date : 19/08/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE A.J. SHASTRI)
1. The petitioner by way of this petition is challenging the legality and validity of order dated 30.12.2015 passed by the learned Central Excise Service Tax Tribunal, Ahmedabad Bench, whereby, the learned Tribunal has not condoned the delay of 152 days, which has caused during the filing of appeal.
2. Brief facts are that the petitioner is a proprietary concern, holding the service tax registration and it has been realized by the Page 1 of 7 HC-NIC Page 1 of 7 Created On Thu Aug 25 02:03:11 IST 2016 C/SCA/6656/2016 ORDER respondent department that the petitioner has not paid the service tax on the services provided by the petitioner and in response to that, a show cause notice came to be issued on 09.04.2014, whereby, the petitioner was asked to pay service tax alongwith interest and penalty to the extent of Rs.1,24,96,549/. Pursuant to the said show cause notice having been issued, the petitioner has replied to the notice and contended that the taxable value may be computed after complying as the petitioner has not collected service tax and thereby disputed the liability which has been tried to be thrust upon. The case of the petitioner was that in view of the exemption granted under the service tax law as well as overriding provisions of the SEZ Act, the petitioner is not liable to pay the same. However, the authority despite the aforesaid stand taken by the petitioner, has passed an order on 19.02.2015, whereby, the demand of the service tax, as stated above, is confirmed alongwith the applicable tax and penalty to the extent of Rs.10,000/ under section 77 of the Finance Act.
3. It is against that order passed by the learned authority, the petitioner had challenged the said Page 2 of 7 HC-NIC Page 2 of 7 Created On Thu Aug 25 02:03:11 IST 2016 C/SCA/6656/2016 ORDER order before the learned Central Excise and Service Tax Appellate Tribunal, Western Region, Ahmedabad. However, during the course of filing the appeal, delay has occasioned to the extent of 152 days and therefore, an appeal came to be presented alongwith application for condonation of delay. During the course of hearing, the petitioner has pointed out the reason as to why the delay has occasioned in preferring the appeal and the main reason which has been advanced by the petitioner is contained in paragraph No.3 of the said application, presented for seeking condonation of delay. The said paragraph reads as under:
"3. Most humbly, we hereby say and submit that the appeal could not be filed within the normal appeal period of three months on account of the following reason;
a) During the course of investigation, we have paid total service tax amounting to Rs.8,93,432/ on two different dates.
b) At those times, our service tax work was being handled by our then tax consultant.
Thereafter, we have changed our tax consultant and handed over entire matter to our present consultant. However, as there has been change in consultants who were looking after our entire matter, some of the documents have gone missing in shifting of work and are still not traceable. One of such missing documents is aforesaid tax paid challans.
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c) As we intend to appropriate those challan towards discharge of mandatory pre deposit amount to be paid along with appeal, we must have copy of those challens.
However, for the aforesaid reasons, we did not have access to the same.
d) In the absence of copy of these challans, we were prevented to file copy of the same with appeal memorandum to be filed before this Hon. Appellate Authority.
e) For these reasons, we were not able to file present appeal within stipulated time limit and hence there has been delay in filing present appeal before Your Honour.
f) In support of this, we submit herewith copy of application and correspondence made by us in Local Treasury Office and in the Bank for obtaining copy of challans for your honour's kind perusal."
4. The petitioner in view of the said explanation requested the learned Tribunal to condone the delay. However, by brief order, the learned Tribunal has not condoned the delay by assigning reason that there appears to be gross negligence on the part of the applicant. It is against that order, present Special Civil Application came to be filed.
5. Learned advocate for the petitioner Mr.Motiramani contended that the delay has been properly explained and it was brought to the notice of the learned Page 4 of 7 HC-NIC Page 4 of 7 Created On Thu Aug 25 02:03:11 IST 2016 C/SCA/6656/2016 ORDER Tribunal that the genuine difficulty which arose as pointed out in paragraph No.3, was beyond the control of the petitioner and therefore, requested the learned Tribunal to condone the delay so as to see that the main appeal can be possible to be adjudicated on merits. Learned counsel has further contended that the reason which has been assigned is sufficient enough to take a liberal view of the matter and in spite of technicality, a reasonable approach be taken by condoning the delay so that the merit of the substantive appeal can be adjudicated upon.
6. As against this, Mr.Lodha, learned counsel appearing on behalf of respondent No.1 has stated that the reason which has been assigned by the learned Tribunal appears to be just and proper as the petitioner has not shown any justifiable reason and thereby contended that what has been arrived at by the learned Tribunal is just and proper. There appears to be gross negligence on the part of the petitioner, which led to delay and for that reason, has opposed the petition.
7. Having heard learned counsel appearing on behalf Page 5 of 7 HC-NIC Page 5 of 7 Created On Thu Aug 25 02:03:11 IST 2016 C/SCA/6656/2016 ORDER of the respective parties and having gone through the averments contained in application, more particularly paragraph 3, it appears that there is a genuine difficulty on the part of the petitioner and the reason which has been assigned, was beyond the control of the applicant and it appears that there is no mala fide intention on the part of the petitioner.
8. In view of the fact that there is no malafide intent nor appears to be any deliberate delay on the part of the petitioner, we are of the opinion that the reason assigned in the application found to be just and proper and sufficient enough to condone the delay.
9. In that view of the matter, the order passed by the learned Tribunal is quashed and set aside and the learned Tribunal is directed to take up the appeal on file and hear the same and dispose of the same in accordance with law at the earliest.
10. The Court while considering this, has expressed no opinion on merits, therefore, it will be open for the parties to plead the case before the Tribunal in accordance with law.
11. Petition is allowed and disposed of accordingly. Page 6 of 7 HC-NIC Page 6 of 7 Created On Thu Aug 25 02:03:11 IST 2016 C/SCA/6656/2016 ORDER (AKIL KURESHI, J.) (A.J. SHASTRI, J.) ANKIT Page 7 of 7 HC-NIC Page 7 of 7 Created On Thu Aug 25 02:03:11 IST 2016