Custom, Excise & Service Tax Tribunal
M/S. Verisign Services India Private ... vs Commissioner Of Service Tax ... on 16 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/20207/2015-SM [Arising out of Order-in-Appeal No. 765/2014 dated 11/11/2014 passed by Commissioner of Service Tax, BANGALORE-I (Appeal).] M/s. Verisign Services India Private Limited The Summit No 6/B, 7th Main, 3rd Block, 80 Feet Road, Koramangala Industrial Layout, Koramangala BANGALORE - 560034 KARNATAKA Appellant(s) Versus Commissioner of Service Tax Bangalore-service Tax 1ST TO 5TH FLOOR, TTMC BUILDING,above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Smt. Lalitha Rameswaran, CA ABARNA & ANANTHAN, S.ANNTHAN /Mrs LALITHA RAMESWARAN CHARTERED ACCOUNTANTS, #643, 1ST MAIN, 7TH BLOCK, 11 PPHASE, BSK III STAGE, BANGALORE 560 085 BANGALORE - 560085 KARNATAKA For the Appellant Smt. Ezhilmathi, AR For the Respondent Date of Hearing: 16/11/2016 Date of Decision: 16/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21148 / 2016 Per : S.S GARG The present appeal is directed against the impugned order dated 11.11.2014 passed by the Commissioner (A) vide which the Commissioner (A) rejected the appeal of the appellant for non-compliance of Section 85(3A) of the Finance Act, 1994.
2. Briefly the facts of the case are that the appellant provides services under the category of Business Auxiliary Services and Information Technology Software Services and is also registered under the provisions of Software Technology Park of India. As per Rule 5 of the CENVAT Credit Rules, assessee can claim refund of unutilised CENVAT credit subject to certain safeguards, conditions and limitations. Appellant filed a refund claim in respect of CENVAT credit availed by them along with all the required documents. Thereafter a show-cause notice dated 30.6.2011 was served on the appellant proposing to reject the refund claim on the ground of lack of nexus with that of output services. Thereafter, the Assistant Commissioner vide Order-in-Original dated 28.9.2012, sanctioned the partial refund of Rs.16,62,924/- and rejected the balance amount of Rs.14,55,785/-. Aggrieved by the said order, the appellant filed appeal before the Commissioner (A). Though the due date for filing the appeal was on 8.12.2012 but the appellant could file the appeal only on 18.12.2012 as their authorised signatory was on continuous tour, therefore, there was a delay of 10 days in filing the appeal, which was within the condonable limit by the learned Commissioner (A). The Commissioner (A) vide his order dated 11.11.2014 dismissed the appeal by holding that the delay in filing the appeal is not condonable. Aggrieved by the said order, the appellant is before this Tribunal.
3. I have heard both the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law and the learned Commissioner (A) has wrongly rejected the appeal merely on the ground of delay and has wrongly refused to condone the delay which was within condonable limit. He further submitted that the delay of 10 days was not deliberate and intentional but the delay was caused due to continuous tour of their authorised signatory. He further submitted that the Commissioner (A) should have adopted a liberal approach and condoned the delay because it was very much within his power to condone the delay at the relevant time which was 30 days after the expiry of two months for filing the appeal on sufficient ground. In support of his submission, he relied upon the decision of the Honble Karnataka High Court in the case of Affiliated Computer Services (I) Pvt. Ltd. vs. CST, Bangalore: 2012 (28) S.T.R. 432 (Kar.) wherein the Honble Karnataka High Court overruled the judgment of the Tribunal, Bangalore and condoned the delay in filing the appeal. The reason for delay in this case was that the recipient of the order in one department had not been communicated to the legal department of the company. However, the Honble Karnataka High Court allowed the appeal on the ground that appeal is a substantive right and narrow view should not be taken to dismiss the appeal.
5. In the present case also by taking a liberal approach, I am of the considered view that the delay in filing the appeal before learned Commissioner (A) was not intentional and deliberate and therefore, I condone the delay in filing the appeal before the learned Commissioner (A) and set aside the impugned order and direct the Commissioner (A) to decide the appeal on merit after affording an opportunity of hearing to the appellant and also opportunity of producing documents, if any.
(Operative portion of the Order was pronounced in Open Court on 16/11/2016.) S.S GARG JUDICIAL MEMBER rv 5