Custom, Excise & Service Tax Tribunal
M/S. Lake Systems Pvt. Ltd vs Commissioner Of Service Tax ... on 8 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH BANGALORE Appeal(s) Involved: ST/21949/2015-SM, ST/21950/2015-SM [Arising out of Order-in-Appeal No. 34-35/2015 dated 10/06/2015 passed by Commissioner of Service Tax, BANGALORE-I (Appeal).] M/s. Lake Systems Pvt. Ltd No 159, Sarjapur Road, 1st Block, 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:
Shri Sathyanageswaran.V, Advocate For the Appellant Smt. Ezhilmathi, AR For the Respondent Date of Hearing: 08/11/2016 Date of Decision: 08/11/2016 CORAM:
HON'BLE SHRI S.S GARG, JUDICIAL MEMBER Final Order No. 21132-21133 / 2016 Per : S.S GARG The present appeals are directed against the order dated 10.6.2015 passed by the Commissioner (A) who vide the impugned order has dismissed both the appeals being barred by limitation without going into the merits of the case. Since the impugned order is common, therefore both the appeals are being disposed of by this common order.
2. Briefly the facts of the present case are that the appellant is registered for providing service under the category of Information Technology Service and Consulting Engineering Service and are exporting the Information Technology Software Service and are availing the CENVAT credit of tax paid on input services viz., rent paid for the premises, security agency service, telecommunication and others. Appellant filed two refund claims of Rs.60,813/- and Rs.92,776/- for two quarters from April 2012 to June 2012 and July 2012 to September 2012 being unutilised CENVAT Credit under Rule 5 of the CCR, 2004. Thereafter a show-cause notice was issued proposing to deny the CENVAT credit and subsequently the Assistant Commissioner vide common Order-in-Original dated 30.7.2014 rejected the refund. Aggrieved by the said order, the appellant filed the appeal before the Commissioner (A) who vide common impugned order dated 10.6.2015 dismissed the appeal as not admitted by holding that from original post cover containing the Order-in-Originals, wherein the date of receipt was smudged. However, the photocopy of the said cover contained a unsigned penned remark stating the date of receipt as 24.08.2014. It is pertinent to note that the original cover had no such remark and when this was shown to the counsel, he was unable to offer any explanation for this glaring discrepancy. Aggrieved by the said order, the appellant has filed the present appeals.
3. I have heard the learned counsel for the parties and perused the records.
4. Learned counsel for the appellant submitted that the impugned order is not sustainable in law as 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 there was a delay of about 20 days in filing the appeal and the same was not deliberate and intentional but on account of the fact that the impugned Order-in-Original was received on 24.8.2014. He further submitted that the Commissioner (A) should have adopted a liberal approach in condoning the delay because it was very much within his power to condone the delay on sufficient ground being shown. He further submitted that for advancing the cause of substantive justice, the delay should have been condoned and the appeals should have been decided on merits. He also submitted that if the delay is condoned, the Revenue will not be prejudiced and the cases would be decided on merit. 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.
5. In view of the above discussions and by taking a liberal approach, I am of the considered opinion that the delay in filing the appeal before the learned Commissioner (A) was not intentional and deliberate and therefore I condone the delay in filing the appeals and setting aside the impugned order and direct the learned Commissioner (A) to decide the appeals on merit after affording an opportunity of hearing to the appellant and also opportunity of producing documents, if any.
6. The appeals are allowed by way of remand.
(Operative portion of the Order was pronounced in Open Court on 08/11/2016.) S.S GARG JUDICIAL MEMBER rv 2