Custom, Excise & Service Tax Tribunal
Excellancy Time &Amp; Entertainment ... vs Bhopal on 19 July, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-DB
COURT -IV
Service Tax COD Application No.ST/COD/50174/2018 [DB] in
Service Tax Appeal No.ST/50428/2018-CU [DB]
[Arising out of O-I-A No.BHO-EXCUS-001-APP-606-17-18 dated 12.01.2017 passed by CCE& ST (A), Bhopal]
Excellency Time & Entertainment P. Ltd. ...Appellant
Vs.
C.C.E., Bhopal ... Respondent
Present for the Appellant : Mr.Z.U. Alvi, Advocate Present for the Respondent: Mr.G.R. Singh, D.R. Coram: HON'BLE MR. V.PADMANABHAN, MEMBER (TECHNICAL) HON'BLE MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Date of Hearing: 21.06.2018 Pronounced on : 19.07.2018 FINAL ORDER NO. 52606/2018 PER: RACHNA GUPTA Present is an order with respect to the application praying for condonation of delay of 370 days in filing the appeal against the Commissioner (Appeals) O-I-A dated 12th January, 2017.
2. It is submitted by the applicant that the aforesaid order dated 12th January, 2017, against which the appeal was to be 2 ST/COD/50174/2018 [DB] in ST/50428/2018-CU [DB] filed, was not delivered to the applicant/ appellant and was apparently returned back to CCE Office, it being wrongly addressed to 1/12, Ranthambore Complex, M.P Nagar, Bhopal. It is only vide letter dated 8th June 2017 enquiring about the compliance of the said order alternatively of filing the appeal before CESTAT, that the appellant / applicant came to know about certain order against them. But the order attached to the said letter was bearing wrong order No. i.e. 06/JC/ST/BPL/ST /2015 whereas there was no such order passed against the applicant. The clarification about the said wrong order was sought by the applicant vide his letter dated 28th of December, 2017 from Commissioner, Central Excise (Appeals) the said letter was replied vide letter dated 6th of February, 2018 confirming that O-I-A No. 06 has wrongly been mentioned and the order against the applicant is the one bearing No.04/JC/BPL-ST/ST/2015. Hence, the appeal thereafter could have been filed resulting into the delay of 370 days. It is impressed upon by the ld. Counsel by the applicant/ appellant that the delay occurred due to the reasonable cause duly explained as above and has accordingly prayed for the application to be allowed.
3. While rebutting these arguments, ld. D.R. has submitted that the reasons taken in the application are wrong. The 3 ST/COD/50174/2018 [DB] in ST/50428/2018-CU [DB] address pertains to appellant itself and appellant was appearing before the adjudicating authorities below, taking the plea of an inadvertent typographical error as a cause for delay is not justified. Application is prayed to be dismissed.
4. After hearing both the counsels, we are of the considered opinion that as per section 35(B)(3) of Central Excise Act, 1944 the appeal has to be filed within 3 months from the date of communication of the order. In the present case the applicant / appellant has taken the plea that the order was not communicated to him, it being delivered at the wrong address i.e. 1/12, Ranthambore Complex, M.P Nagar, Bhopal instead of 1/11, Ranthambore Complex, M.P Nagar, Bhopal. But the perusal of record shows that the appeal memo as was filed by the applicant before Commissioner (Appeals) bears the address of appellant being 1/12, Ranthambore Complex, M.P Nagar, Bhopal. Hence, the Supdt. Commissioner (Appeals) committed no mistake while delivering the O-I-A at the said address. It is also perused that 1/12, Ranthambore Complex, M.P Nagar, Bhopal is the address of Mr.Hariom Jatiya, who is none but the Managing Director of the applicant/appellant. There is a resolution in his favour to be the authorized signatory with respect to all the proceedings qua the impugned show cause notice. Even the show cause notice dated 27th January, 2014 4 ST/COD/50174/2018 [DB] in ST/50428/2018-CU [DB] on which the impugned adjudication initiated and the applicant-appellant duly participated at all stages, was also served to the applicant/appellant at the address 1/12 Ranthambore Complex, M.P Nagar, Bhopal. Hence, the plea of appellant that the order was communicated at the wrong address and could not be made available to the applicant - appellant is apparently false.
5. The Subsequent plea of delay on account of correspondence for seeking clarification about order number also retains no significance, it merely being a typographical error. The reason taken in the application is not only held to be false, but is held to be misleading one. The Hon'ble Supreme Court in the case of Balwan Singh vs. Jagdish Singh - 2010 (4) CCC 551 (SC) has held that delay is just one of the ingredients, which has to be considered while condonation of delay. Court, in addition, must also take into consideration the conduct of the parties, bonafide reasons for delay and whether such delay would easily be avoided by the applicant acting with normal care and caution. It was also held that a person seeking aid of court for exercising its discretionary power, he is expected to state correct facts and to not to speak lies before the Court. The scope of due diligence was also clarified by the Hon'ble Apex Court in the 5 ST/COD/50174/2018 [DB] in ST/50428/2018-CU [DB] said case holding that the inaction can be attributed to the applicant only when something required to be done by him is not done.
6. In the present case since the applicant/appellant was very much aware of the show cause notice served upon him and the subsequent adjudication. Not only this, have participated before both the adjudicating authorities below. It was his incumbent duty to enquire the status of the outcome of the adjudication, even if, he failed to receive any communication. He cannot be allowed to cloth a minor typographical error to be known as a reasonable cause for impugned delay. In addition, he has observed to state the incorrect facts before the Court and to have taken the wrong pleas under the pretext of reasonable cause.
7. As a result, we are of the opinion that the benefit of discretionary relief cannot be extended in favour of the applicant/appellant. Application, accordingly, stands dismissed and appeal stands dismissed.
[Pronounced in the open Court on 19.07.2018] (RACHNA GUPTA) (V.PADMANABHAN) MEMBER (JUDICIAL) MEMBER (TECHNICAL) Anita 6 ST/COD/50174/2018 [DB] in ST/50428/2018-CU [DB]