Custom, Excise & Service Tax Tribunal
Rajasthan Housing Board vs Commissioner, Central Excise &Amp ... on 15 March, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH COURT NO.IV
SERVICE TAX APPEAL NO. 50354/2021
[Arising out of Order-in-Appeal No. 332/(CRM)ST/JDR/2020 dated
11.11.2020 passed by the Commissioner (Appeals), CE & CGST,
Jodhpur]
RAJASTHAN HOUSING BOARD
(Resident Engineer) APPELLANT
C-289-290, R K Colony,
Bhilwara 311001.
Vs.
COMMISSIONER(Appals),
CENTRAL EXCISE & CGST, JODHPUR RESPONDENT
G-105, New Industrial Area, Opp Diesel Shed, Basni, Jodhpur (Raj) APPEARANCE:
Ms Shruti Kabra, Chartered Accountant for the Appellant Shri Ishwar Charan Authorised Representative for the Department CORAM:
HON'BLE MRS RACHNA GUPTA, MEMBER (JUDICIAL) DATE OF HEARING/DECISION: March 15, 2022 FINAL ORDER No. 50265 /2022 PER RACHNA GUPTA Present appeal has been filed to assail the order in appeal No. 332/JDR/2020 dated 11.11.2020 vide which the appeal of the present appellant was rejected by Commissioner (Appeals) on the ground of limitation only and the merits were not at all considered.
ST/50354/2021
2. The facts in brief are as follows:
That the appellant is the housing board established under State of Rajasthan Housing Board Act. The appellants are engaged in providing and receiving of constructions services with respect to residential / commercial / industrial buildings and various other services as that of Goods Transport Agency Services, Work Contract Services etc. During the audit of appellant's record, department observed that the appellant has wrongly availed the Cenvat Credit of Rs.20,89,899/- for the reason that the payment of Service Tax under Works Contract Service scheme was made prior, irrespective the works contract services was an eligible input service. The aforesaid amount of Cenvat credit was accordingly proposed to be recovered along with the interest vide the Show Cause Notice No. 45 dated 18.4.2019 with the proposal for imposition of penalty as well. The said proposal was confirmed vide Order in Original No. 37 /2019 dated 1.1.2020. However the appeal thereof has been rejected on the ground of it being filed after a delay of 6 months and 22 days. Being aggrieved the appellant is before this Tribunal.
3. I have heard Ms Shruti Kabra, learned Chartered Accountant appearing for the Appellant and Shri Ishwar Charan, learned Authorised Representative appearing for the Department.
4. Learned Chartered Accountant appearing for the appellant has mentioned that the clarification from department vide Ordinance No. 2/2020 dated 31.3.2020 was duly brought to the notice of the Commissioner (Appeals) which extended the date of compliance under Service Tax including time for filing of appeals. As per the said ordinance due dates falling during the period 20.3.2020 to 29.6.2020, were extended to 30.9.2020. The present appeal was filed on 25.09.2020 i.e. during the extended period. It is submitted that despite the said ordinance the Commissioner (Appeals) has failed to appreciate that the appeal 2 ST/50354/2021 was filed within the said extended time and as wrongly rejected the appeal on the ground of limitation.
5. Learned Counsel also impressed upon that keeping in view the unprecedented condition of outbreak of covid 19 pandemic during the aforesaid period Hon'ble Apex Court also vide its order dated 10.1.2022 had clarified that the period with effect from 15.3.2020 till 28.02.2022 shall stand excluded in computing the period of limitation. Based upon such ordinance and aforesaid decision learned Counsel has prayed that the order passed on the ground of limitation be set aside and the matter be heard on merits. Appeal accordingly is prayed to be disposed of accordingly.
6. While rebutting the submissions learned Departmental Representative has impressed upon that there was a statutory mandate upon Commissioner (Appeals) in terms of Section 85(3A) of the Finance Act to not to entertain any appeal filed beyond the period of 60 days /two months. The discretion of condoning the delay with Commissioner (Appeals) is only for a period of subsequent one month. The present appeal has been filed with a delay of 6 months and 22 days that too without any application seeking condonation thereof. Learned Departmental Representative has impressed upon the findings in para 9 and 10 of the order, as such have no infirmity. Appeal in hand is accordingly prayed to be dismissed.
7. After hearing the rival contentions and perusing the order under challenge, it is observed that learned Commissioner (Appeals) has rejected the appeal on the ground of limitation while laying emphasis upon the decision of Hon'ble Apex Court in the case of M/s. Singh Enterprises vs. Union of India reported as [2008 (221) E.L.T. 163 (S.C.)] wherein it was held by Hon'ble Apex Court that language used in section 35(1) of Central Excise Act which is para materia to Section 85(3A) of Finance Act 3 ST/50354/2021 and makes the position clear that legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days from the date of receipt of Orders-in-Original, which is the normal period for preferring appeal. Hon'ble Apex Court observed that there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period beyond two months from the date of receipt of Order-in-Original. In these circumstances, it is observed that Commissioner (Appeals) has committed no error while rejecting the impugned appeal on the grounds of limitation.
8. The simultaneous fact which is apparent beyond anybody's control is that during the said period of two months there had been unprecedented condition of outbreak of covid 19 panedemic resulting into complete nation wide lockdown. It is in view of these circumstances that the Tax department had issued ordinance No. 2/2020 extending the period of limitation with respect to the due date falling from 20.3.2022 to 27.6.2022 to 30.9.2020. Not only this, the Hon'ble Apex Court in a suo moto Writ Petition No. 3/2020 along with other Miscellaneous application as were decided vide order dated 10.1.2022, while keeping into mind the aforesaid unprecedented circumstances, had directed that the period from, 15.3.2020 till 28.2.2022 shall stand excluded for the purpose of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings. Proceedings before the Department, departmental Tribunal gets covered under the mandate of the said order being the quasi judicial authorities. Keeping in view the same and mandate of article 141 of Constitution of India the period from 02.03.2020 when appeal would have been filed before Commissioner (Appeals), that Commissioner (Appeals) has not committed any error while dismissing the appeal on the ground of 4 ST/50354/2021 limitation, it being statutory mandate on the Commissioner (Appeals) on 25.09.2020 when appeal before him was actually filed is hereby excluded from the period of limitation. The period till 30.9.2020/ 28.2.2022 still remains excluded, hence appeal filed on 25.09.2020 is held to have been filed within the period of limitation. Irrespective that the benefit of both these announcements have to be extended in favour of the appellant. The matter cannot be held to have crossed the period of its limitation as the same was extended in terms of above discussion.
9. The appeal accordingly held to be a fit case to be remanded back to the Commissioner (Appeals) for adjudication on merits without considering plea of limitation The matter be preferably be decided within four months from the date of impugned order. As a result of entire above discussion , the appeal stands allowed by way of remand.
( RACHNA GUPTA ) MEMBER (JUDICIAL) ss 5