Custom, Excise & Service Tax Tribunal
Regus Centre Services (Bangalore) Pvt. ... vs Commissioner Of Service Tax Bangalore ... on 28 March, 2018
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/20851/2015-SM [Arising out of Order-in-Appeal No. 679/2014 dated 07/10/2014 passed by Commissioner of Central Excise, BANGALORE-II (Appeal).] Regus Centre Services (Bangalore) Pvt. Ltd. 2nd Floor, No 104, EPIP, Prestige Omega, White Field BANGALORE - 560055 KARNATAKA Appellant(s) Versus Commissioner of Service Tax BANGALORE SERVICE TAX- I 1ST TO 5TH FLOOR, TTMC BUILDING, above BMTC BUS STAND,DOMLUR BANGALORE, - 560071 KARNATAKA Respondent(s)
Appearance:
Mr. Himanshu Goel, CA T.R. CHADHA & CO LLP #204, 2ND FLOOR, #50, GOLD TOWER, RESIDENCY ROAD, BANGALORE - 560025 KARNATAKA For the Appellant Mrs. Kavitha Podwal, AR For the Respondent Date of Hearing: 28/03/2018 Date of Decision: 28/03/2018 CORAM:
HON'BLE MR. S.S GARG, JUDICIAL MEMBER Final Order No. 20506 / 2018 Per : S.S GARG The present appeal is directed against the impugned order dated 7.10.2015 passed by the Commissioner (A) whereby the Commissioner (A) has dismissed the appeal of the appellant on time bar without going into the merits of the case.
2. Briefly the facts of the case are that the appellant is registered as a service provider under the category of Business Support Service and during the audit of the records of the appellant, it was observed that the appellant had availed CENVAT credit without the receipt of input service documents which is in contravention of Rule 9 of CENVAT Credit Rules, 2004. Thereafter, a show-cause notice was issued and the Assistant Commissioner after complying the principles of natural justice vide Order dated 17.1.2012 confirmed the demand. Aggrieved by the said order, appellant filed an appeal before the Commissioner (A) and the Commissioner (A) has observed in the impugned order that the appeal has been filed after the expiry of five months from the date of passing the order whereas the time limit for filing the appeal is three months from the date of communication of the order appealed against as per Section 85 of the Finance Act, 1994. Further, the Commissioner (A) has observed that the appellant has not filed any application seeking condonation of delay in filing the appeal and therefore, the Commissioner (A) without going into the merits of the case has dismissed the appeal.
2. Heard both the parties and perused the records.
3. Learned counsel for the appellant submitted that although the Order-in-Original was passed on 17.1.2012 but the same was not known to the company and when their representative visited the Department and enquired about the status of the case, then the copy of the order was provided to the appellant on 7.5.2012. Thereafter, they filed an appeal before the Commissioner (A) within the stipulated time provided under Section 85 and there is no delay in filing the appeal from the date of communication of the order appealed against. He further submitted that he has filed an affidavit of Ms. Vandana Baijal, Authorized Signatory and she has certified that the company has received the Order-in-Original on 7.5.2012 by hand from the department.
4. On the other hand, the learned AR submitted that there is an acknowledgement which has been produced by the department that somebody has received in the factory the original order. Perusal of this receipt shows that there is no official stamp of the company on the postal acknowledgement and the name of the person who has received the post has not been mentioned and any order reference number is also not mentioned and then there is a gap of almost two months in dispatching the order from the date of passing the same. The learned counsel further submitted that the appellant is not going to gain anything from filing the appeal belatedly and they filed the appeal after they received the order by hand.
5. After considering the submissions of both the parties, I find that the appellant has filed the appeal within time from the date of receipt of order appealed against before the Commissioner (A) and therefore, the dismissal of the appeal merely on time bar is not sustainable in law and therefore, I set aside the same by allowing the appeal of the appellant and remand the matter back to the Commissioner (A) to decide the same on merit after complying with the principles of natural justice.
(Order was pronounced and dictated in Open Court on 28/03/2018) S.S GARG JUDICIAL MEMBER rv...
ST/20851/2015-SM 4