Custom, Excise & Service Tax Tribunal
M/S. Open Text Technologies India Pvt. ... vs Cc,Ce&St, Hyderabad-Iv on 23 February, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No.ST/25810/2013 (Arising out of Order-in-Appeal No.265/2012(H-IV)-ST dt. 22/11/2012 passed by CC,CE&ST(Appeals-II), Hyderabad) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member(Judicial) 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 Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s. Open Text Technologies India Pvt. Ltd. ..Appellant(s) Vs. CC,CE&ST, Hyderabad-IV ..Respondent(s)
Appearance Ms. Rajitha Manish, Advocate for the appellant.
Shri S.P. Rao, Authorised representative for the respondent.
Coram:
Honble Ms. Sulekha Beevi, C.S., Member(Judicial) Date of Hearing:23/02/2016 Date of decision:23/02/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.] The appellants are aggrieved by the impugned order passed by the Commissioner(Appeals) dismissing the appeal on the ground of delay in filing the appeal.
2. The appellants are registered under service categories of management consultancy service, information technology software service and business auxiliary service. They filed an application for refund for the period April 2011 to September 2011 of the service tax paid on input services. A show-cause notice was issued to them proposing to deny refund and after due process of law, the original authority denied the refund vide order-in-original dt. 26/06/2012. The appellants received copy of the order-in-original on 10/07/2012. They filed an appeal before the Commissioner(Appeals) on 08/10/2012. The Commissioner(Appeals) dismissed the appeal holding that the appellants have filed the appeal beyond the prescribed period of 2 months and that the appeal is not accompanied with a petition to condone the delay. Aggrieved by this order, the appellants have preferred the present appeal.
3. On behalf of appellants, learned counsel Ms. Rajitha Manish submitted that the appellants had filed the appeal within the period of 90 days from the date of receiving the copy of the order. That as per the preamble of the Order-in-Original, the period for filing the appeal was shown as 90 days. That appellants were under bona fide belief that appeal is filed within time and they did not file any application for condonation of delay(COD). According to her, the appeal is filed within time and argued that the Commissioner(Appeals) has erroneously dismissed the appeal.
4. Against this, the learned AR submitted that the appellants have filed the appeal after the period of two months and did not file any application to condone the delay in filing the appeal. He also pointed out that Commissioner(Appeals) has issued a letter dt. 25/10/2012 addressed to the appellants informing them to file an application for condoning the delay in filing the appeal. That the appellants having filed the appeal beyond the period prescribed as per law, Commissioner(Appeals) has rightly dismissed the appeal.
5. I have heard rival submissions made by either side. As per Section 85(3A) of the Finance Act, 1994, the appeal has to be filed within two months from the date of communication of the order. The appeal in that case ought to have been filed before 10/09/2012. The appellants have filed the appeal on 08/10/2012, which is beyond the period of two months but within 90 days; the time limit prescribed for condonation of delay by the Commissioner(Appeals). Though the Department contends that the Commissioner(Appeals) issued a letter informing the appellant to file an application for COD, it is submitted by the appellants that they have not received any such letter from the Commissioner(Appeals). Taking into consideration the submissions made, I am of the opinion that the delay in the present case being within the period which the Commissioner(Appeals) has powers to condone the delay, it is deemed fit that the matter be remanded to the Commissioner(Appeals) with liberty to the appellants to file an application to condone the delay in filing the appeal. In view thereof, the matter is remanded to the Commissioner(Appeals). The appellants are at liberty to file an application to condone the delay in filing the appeal and the Commissioner(Appeals) shall consider the delay application under law. Appeal is allowed by way of remand.
(Pronounced and dictated in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Raja.
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