Custom, Excise & Service Tax Tribunal
The Narasimha Mills vs Coimbatore on 14 June, 2018
IN THE CUSTOMS, EXCISE & SERVICE TAX
APPELLATE TRIBUNAL
SOUTH ZONAL BENCH AT CHENNAI
ST/COD/41724/2017 & ST/42357/2017
(Arising out of Order-in-Appeal No. 279/2013 dated 27.08.2013
passed by the Commissioner of Service Tax (Appeals),
Coimbatore).
M/s. The Narasimha Mills Appellant
Vs.
CCE & ST, Coimbatore Respondent
Appearance Shri VV. Ravindran, Advocate for the Appellant Shri K. P. Muralidharan, AC (AR) for the Respondent.
CORAM Hon'ble Shri Madhu Mohan Damodhar, Member (Technical) Hon'ble Shri P. Dinesha, Member (Judicial) Date of Hearing/Decision: 14.06.2018 FINAL ORDER No. 41910/2018 Per: P.Dinesha This appeal is filed by the assessee with an inordinate delay of 1553 days. The assessee-appellant has filed an application seeking condonation of the above delay in filing the appeal. The reasons attributed by the assessee-applicant for such delay vis-à- 2 vis relevant facts are summarized herein below for the sake of convenience:-
S.No. Date Events
1 31.07.2011 Intimation by the Department
2 08.02.2012 Show Cause Notice No.11/2012-ADC
3 28.03.2012 Order-in-Original No. 8/2012-ADC
4 27.08.2013 Order-in-Appeal No. 279/2013
5 27.09.2013 VCES application made
6 15.11.2013 VCES application rejected
7 24.01.2014 Appeal filed before the Commr.(Appeals)
against VCES rejection
8 11.02.2014 Appeal returned stating that there was no
provision for appeal under VCES
9 11.06.2015 Order in Writ petition by the Hon'ble High
Court directing the Commr.(Appeals) to
dispose of the appeal on merits.
10 22.01.2016 Commissioner (Appeals) rejected the
appeal.
11 25.10.2017 Vide Final Order No. 42372/2017 dated
25.10.207, the Tribunal dismissed the
appeal after recording the confession by the Ld. Counsel for the appellant that the appeal was not against the order of the Commissioner (Appeals) in merits but only against the rejection of VCES application.
2. From the above, it is evident that the order of the Ld. Commissioner (Appeals) dated 27.08.2013 became final since the same was accepted without challenge by the appellant probably because the appellant felt that the demand in the order was legal and correct. Nonetheless the appellant made an application under Voluntary Compliance Encouragement Scheme (in short VCES) and the same was pursued for more than a year till the appellant's appeal was dismissed by the Commissioner (Appeals). Before the Ld. Commissioner (Appeals) the appellant pursued only the validity of the rejection of its application under VCES which came to be returned vide order dated 11.02.2014 by the Ld. Commissioner 3 (Appeals). Against this order of the Ld. Commissioner (Appeals) the appellant preferred a writ petition before the Hon'ble High Court of Madras. The only issue, as noted by the Hon'ble High Court at page-8, paragraph-9 of its order in the above writ petition is as under:-
"8. The only issue involved in this writ petition is, whether an appeal under Section 85 of the Act, 1994 would lie as against the order of rejection or declaration passed by the designated authority under Section 106 (2) of the Act, 1994?
3. After considering the rival submissions, the Hon'ble High Court was of the view that the impugned order ie., OIA dated 11.02.2014 passed by the commissioner (Appeals) has appealable and consequently, the same was set aside with the direction to the Ld. Commissioner to dispose of the appeal in accordance with law.
4. Accordingly, the Ld. Commissioner passed an order dated 22.01.2016 rejecting the appeal filed by the appellant. Against this order of the Ld. Commissioner, the appellant filed an appeal before this forum which came to be dismissed in terms of the order as extracted against S.No. 11 in the above table.
5. Now by this appeal the appellant wants to impugn the OIA No. 279/2013 dated 27.08.2013 (Sl.No.4) for which there is a delay of 1553 days. In its application for condonation of the above inordinate delay the appellant submitted interalia, that under a bonafide belief it had filed the declaration under VCES seeking immunity from interest and penalty which was rejected; that an appeal was filed against the said rejection which was pursued 4 before the Hon'ble High Court; that as per the directions of the Hon'ble High Court the matter was decided on merits by the Commissioner (Appeals), which was upheld by this Bench; that the pendency of the same issue before various judicial forums delayed the filing of the present appeal and hence claimed that the delay caused was not intentional, etc.
6. During the course of the arguments, the Ld. Counsel, Shri V. Ravindran placed reliance on the decision of the Hon'ble High Court of Bombay in the case of IVP Ltd. and Others Vs. UOI - 2017 (11) TMI 531 and the Tribunal decision in the case of M/s. Khamdhenu Ispat Ltd. Vs. CCE, Jaipur - 2015 (9) TMI- 1543-CESTAT-NEW DELHI, wherein according to the Ld. Counsel the Hon'ble High Court of Bombay had condoned the delay of 1902 days delay in filing the appeal on the ground that the assessee had exhibited inherent genuineness without citing any lame excuses of medical grounds. The Ld. Counsel also relied on the following decisions in his support:-
i) Bhag Singh Vs. Major Daljit Singh -
1987 (32) ELT 258
ii) Collector Land Acquisition, Anantnag & another
Vs. MST Katiji & Others
1987 (28) ELT 185 (S.C.)
iii) Standard Treads Pvt. Ltd. Vs. CCE, Cochin 1996 (83) ELT 30 (Ker.)
7. We have heard the Ld. Counsel, carefully considered the material facts and the judgments referred to supra but, we are not 5 convinced as to the explanation or arguments of the Ld. Counsel for the reasons detailed below:-
i) It is an admitted position that the appellant did not challenge the OIA of the Ld. Commissioner dated 27.08.2013 and as pleaded by the ld. Counsel, it was interested only in seeking immunity/amnesty from interest and penalty for which reason it opted for declaration under VCES. As we find from the table above, this Bench passed its order dated 25.10.2017 and filing of the appeal appears to be an afterthought. When the assessee-
appellant could get into litigation by instructing its Counsel to file appeals after appeals up to the High Court, it cannot be assumed that it did not think of filing appeal even on merits nor that the assessee could plead ignorant when it comes to the filing of appeal on merits instead agitating before various forums.
ii) Evidently, the delay in the case on hand is inordinate and the explanation sought to be offered is not satisfactory or convincing. Having pursued appeals on the validity of declaration under VCES, nothing prevented the appellant who kept on filing appeals under VCES to file an appeal even on merits and this approach is nothing but elective and also indicates that the order impugned has been now appealed to this forum was at that stage accepted by them. We are unable to exercise any discretion in this matter since the appellant has failed to establish that it was alert or vigilant. It is not its case that it has otherwise averse to litigation or that there was no instruction at all to the ld. Counsel with help to filing of appeals. We have carefully gone through the 6 decisions relied by the Ld. Counsel, we also observe that our view is supported by jurisdictional High Court's decision in the case of Triveni Alloys Ltd. Vs. CESTAT, Chennai reported in 2014 (306) ELT 617 (Mad.).
8. In view of the above, the application seeking condonation of delay is rejected. Consequently, appeal also stands dismissed without going into the merits.
(Operative part of the Order pronounced in the open court) (P. DINESHA) (MADHU MOHAN DAMODHAR) MEMBER (JUDICIAL) MEMBER (TECHNICAL) BB