Custom, Excise & Service Tax Tribunal
M/S. Bharat Earth Movers Ltd. (Beml) vs Commissioner Of Central Excise, ... on 16 January, 2017
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Application(s) Involved: E/COD/20918-20919/2016 in E/20211-20212/2016-SM Appeal(s) Involved: E/20211-20212/2016-SM [Arising out of Order-in-Appeal No. 718/2013-CE dated 30.12.2013 & OIA No.722/2013-CE dated 31.12.2013 passed by the Commissioner of Central Excise (Appeals-I), Bangalore.] M/s. Bharat Earth Movers Ltd. (BEML) KGF Complex, BEML Nagar, Kolar Gold Fields (KGF) 563 115. Appellant(s) Versus Commissioner of Central Excise, Service Tax And Customs (Appeals-II) SP Complex, Lalbagh Road BANGALORE - 560027 KARNATAKA Respondent(s)
Appearance:
Mr. G. Shivadass, ADVOCATE For the Appellant Mr. N. Jagadish, AR For the Respondent Date of Hearing: 27/12/2016 Date of Decision: 16/01/2017 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 20048-20049 / 2017 Per : S.S GARG The applicants/appellants have filed two appeals against the Order-in-Appeal No.718/2013-CE dated 30.12.2013 and Order-in-Appeal No.722/2013-CE dated 31.12.2013 passed by the Commissioner of Central Excise (Appeals), Bangalore along with two applications seeking condonation of delay of 676 days in filing the appeals before the Tribunal. Though two Orders-in-Appeal have been passed but the issue in both the appeals is identical; and in the applications seeking condonation, the ground on which condonation is sought are also the same; therefore, both the applications seeking condonation of delay are being disposed of by the present common order. It has been averred by the applicant in their applications that the impugned Order-in-Appeal dated 31.12.2013 was received by the applicants on 13.1.2014 and the appeal was required to be filed on or before 13.4.2014 whereas in fact the present appeals were filed only on 18.2.2016 with a delay of 676 days. The applicant has further averred that upon receipt of the Order-in-appeal, the same was forwarded by the applicant to their legal counsel for advice of further course of action. The issue in the present case relates to demand of CENVAT credit wrongly availed but reversed prior to utilization. The learned counsel after pursuing the Order-in-Appeal communicated to the applicant to deposit the interest and advised the applicant that since CENVAT credit has already been reversed, it would be sufficient if the interest amount is also paid. Thereafter the applicant deposited the interest amounting to Rs.27,041/- in appeal No. E/20211/2016 and an amount of Rs.90,500/- in appeal No. E/20212/2016. After depositing the interest, the applicant submitted the details of payment to the Assistant Commissioner requesting him to drop the further proceedings. Subsequently, the applicant received a letter dated 15.10.2015 directing the applicant to pay the penalty of Rs.8,17,590/- in appeal No. E/20211/2016 and penalty of Rs.20,65,822/- in appeal No. E/20212/2016 from the Superintendent, LTU. After that another letter dated 1.2.2016 was also issued to the applicant directing the applicant to pay the penalties. On receipt of this letter dated 1.2.2016, applicant realized that the Assistant Commissioner does not have the power to set aside the Orders-in-Appeal upon payment of interest and forwarded the cases to their legal counsels for filing the appeals before the CESTAT and thereafter, the applicant immediately filed the appeals before the CESTAT on 18.2.2016 with the delay of 676 days in filing the appeals. Applicant has submitted that the delay in filing the appeals was unintentional and attributable to the wrong legal advice of the applicants counsel. Applicants submit that they have a very good case on merits and on the same issue, this Honble Tribunal has passed various orders following the Larger Benchs decision of CESTAT in the case of M/s. J.K. Tyres & Industries vs. ACE: 2016-TIOL-1781-BANG.-LB. The learned counsel further submitted that a liberal approach should be adopted in the matter of condonation of delay because the applicant does not stand to gain anything by filing the appeal late, therefore, he prayed for condonation of delay and deciding the case on merits. In support of his submission, he relied upon the decision of the Honble Supreme Court in the case of Collector of Land Acquisition vs. Katiji reported in 1987 (28) ELT 185 (SC).
2. On the other hand, the learned AR vehemently opposed the applications seeking condonation of delay. He further submitted that there is an inordinate delay of 676 days in filing the appeals and the applicant has not been able to give any cogent and convincing reasons for such an inordinate delay in filing the appeals. He further submitted that the applicant is a public sector undertaking and is having a lot of cases pending before this Tribunal and has got number of officers looking after the legal affairs of the company. He also submitted that when the applicant received the said order on 13.1.2014 and at that time, there were appeals filed by the appellant on similar issue pending before the Honble Tribunal, however, the appellant did not file the appeal in these two cases in time but filed the same after a gap of 676 days when recovery was sought to be effected. He further submitted that the department has been issuing letters to the applicant asking him to deposit the penalty but the applicant did not bother to deposit the same and when the recovery was sought to be effected, thereafter they filed the present appeals. The learned AR also gave details of the cases on similar issues disposed of by the Honble Tribunal during the time when the applicant received the impugned orders, the details of which are as under:
Sl. No. Appeal Nos.
Impugned Order No. Final Order of the Tribunal 1 E/276/2009 & E/423/2009 OIA No.3/2009 dt.21.1.2009 No.21405-21406/2015 dt.29.5.2015 2 E/25528/2013 OIO No.33/2012 dt.18.12.2012 No.207270/2016 3 E/26812/2013 OIA No.77/2013 dt.25.3.2013 No.20608/2016 dt.4.8.2016 2.1 He further submitted that when the applicant can file appeals on similar issues and some are pending before the Honble Tribunal and some of them have been disposed of then why the applicant did not file the appeals in the present two cases is not understandable. He also submitted that the only reason given by the applicant for seeking condonation of delay is the wrong advice given by the lawyer of the applicant but the applicant have neither mentioned the name of the counsel nor furnished any written clarification given by the counsel. Further, counsel has also not filed any affidavit admitting the advice given by him. He further submitted that in the facts and circumstances of the case when similar matters are being contested by the applicant, the applicant cannot plead ignorance.
3. After considering the submissions of both the parties and perusal of the material on record, I find that there is a gross negligence on the part of the applicant in pursuing these two cases. Admittedly the applicant received the impugned order on 13.1.2014 but chose to file the appeal only on 18.2.2016 after a gap of 676 days. I also find that during the relevant period, on similar issues the applicant has been pursing cases before the Tribunal, the details of which has been filed by the learned AR. I also find letters dated 4.4.2014 and 29.5.2014 written by the department to the applicant for recovery of arrears but the applicant instead of filing appeals thereafter immediately simply deposited the interest and asked the department to close the matter. Further, I also find that the applicant chose to file the appeals only when the recovery was sought to be effected. In view of the facts and circumstances, I am of the view that in these cases, there is a gross negligence on the part of the applicant and I do not find it a fit case to condone the inordinate delay of 676 days. Consequently, I dismiss both the applications seeking condonation of delay. As a result of dismissal of condonation applications, both the appeals are also dismissed.
(Order was pronounced in Open Court on 16/01/2017.) S.S GARG JUDICIAL MEMBER rv 2