Custom, Excise & Service Tax Tribunal
Sanjay Patil vs Commissioner Of Central Excise - ... on 18 March, 2025
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH -COURT NO. 4
Service Tax Appeal No. 50246 of 2024
(Arising out of Order-in-Appeal No. 254(AK)ST/JDR/2023 dated 30.08.2023
passed by the Commissioner (Appeals), Central Excise & CGST, Jodhpur)
Sanjay Patil Appellant
Prop. Vividh International Product
R/o C-105, Om Urban Heights,
4-Karneshwar Housing Scheme,
MBS Road, Kota, Rajasthan-324005.
Versus
Commissioner of Central Excise, Udaipur Respondent
NCR Building, 142-B, Sector-11, Udaipur - 313002.
Appearance:
Present for the Appellant: None Present for the Respondent: Shri Anuj Kumar Neeraj, Authorized Representative CORAM:
Hon'ble Dr. Rachna Gupta, Member (Judicial) Date of Hearing/Decision : 18/03/2025 Final Order No. 50418/2025 Dr. Rachna Gupta:
Present order disposes of the appeal as was filed against Order-in-Appeal No. 254/2023 dated 30.08.2023. The appeal has been heard in absence of the appellant, due to the warnings given in the order of this Tribunal dated 06.01.2025.
2. The facts in brief, relevant for the purpose are that the financial records of the appellant for the financial year 2012-2013 to 2016-17 were received from Income Tax Department vide letter 2 ST/50246/2024 dated 30.08.2018. Perusal thereof showed that the appellant had provided services to various companies/firms and the TDS on the amount paid to the appellant has also been deducted by these companies/firms during the aforementioned period. However, on the perusal of the ACES system, it was noticed that the appellant had not filed the ST-3 return for the said period, despite receiving an amount of Rs. 82,05,608/- during the period 2013-2014 to 2016-2017.
3. Based on the said information, department formed an opinion that services provided by the appellant are covered under the definition of "service" as defined under Section 65B(44) of Finance Act, 1994. Department also observed that the services were in the nature of Maintenance and Repair Services which are not covered under the negative list of Section 66D of Finance Act, 1994 (the amendment Act 2012). Accordingly, a show cause notice bearing No. 286/2018 dated 16.10.2018 was served upon the appellant proposing recovery of service tax amounting to Rs. 10,58,738/- along with the proportionate interest and the appropriate penalty. The said proposal was initially confirmed vide Order-in-Original No. 81/2020 dated 04.09.2020. Appeal against the said order has been dismissed vide the impugned order in appeal, however, on the technical ground of being time-barred.
4. Being aggrieved, the appellant had filed the present appeal. However, despite being served with the notice of hearing for reasonable number of opportunities and despite a warning of last opportunity being served upon the appellant, the appellant has opted to not to come present and to make the submissions vis-à- 3
ST/50246/2024 vis the grounds of appeal raised in the present appeal memo. Extending further opportunity to the appellant in such circumstances, is opined unreasonable. Resultantly, and in view of the directions of Hon‟ble Apex Court in the case of M/s Jai Balaji Industries Vs. D.K. Mohanty & Another in Civil Appeal No. 5899 of 2021 decided on 01.10.2021, I have heard the arguments on behalf of department.
5. Learned Departmental Representative has mentioned that the appellant had never responded and had never been cooperative. No reply to show cause notice was ever filed. Even the order in original dated 04.09.2020 was passed ex-parte. From the grounds of appeal in the present appeal memo, there is a clear admission of the appellant that the appellants were providing the repairing services of the machinery till the machinery used to be in the warranty period thereafter they were engaged in providing the maintenance and repair service on chargeable basis. The amount of Rs. 82,05,608/- for the financial year 2012-2013 to 2016-2017 is also admittedly received by the appellant for providing said service. It is submitted that since the said service is taxable, the appellant was liable to deposit tax.
6. Coming to the fact that the appeal before Commissioner (Appeals) has been dismissed being barred by time, it is submitted by learned Departmental Representative that though the period from 01.03.2020 to 28.02.2022 was excluded for determination of time limit for exercising the legal remedy as per the order of Hon‟ble Supreme Court in the suo moto of writ petition, the appeal filed before Commissioner (Appeals) was still beyond the period of 4 ST/50246/2024 90 days. Hence there is no infirmity in the order under challenge, the appeal is prayed to be dismissed.
7. Having heard learned Departmental Representative and perusing the entire record of the impugned appeal memo including the grounds of appeal, it is observed that there is clear admission of the appellant, as brought to notice by learned Departmental Representative, that the appellant‟s activity is an activity defined as „service‟ under Section 65B(44) of Finance Act. There is nothing on record of grounds of appeal to show that Section 66D of the Finance Act is applicable, to said activity. However, without reflecting any further on the merits of the case, since the order under challenge is passed on the issue of limitation it is observed as follows:
The impugned order-in-original is dated 04.09.2020. The period for filing appeal against the said order, in terms of Section 85(3A) of the Finance Act, 1994 is two months from the date of receipt of decision/order of the original adjudicating authority. Though proviso to this section gives discretion to Commissioner (Appeals) to allow appeal to be presented within a further period of one month if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months.
8. I observe that the order in original dated 04.09.2020 was apparently and admittedly received by the appellant on 10.09.2020. Hence the appeal would have been filed by 10.11.2020 (within two months of receiving order) by 10.12.2020 5 ST/50246/2024 (within further period of 30 days of proviso to Section 85). But the appeal before Commissioner (Appeals) was filed on 22.08.2022. No doubt, Hon‟ble Supreme Court in suo moto writ petition No. 3 of 2020 decided on 10.01.2022 had ordered exclusion of time i.e. from 01.03.2020 to 28.02.2022) while calculating the period of limitation. But from the dates as mentioned above, it is clear that appeal filed before Commissioner (Appeals) on 28.02.2022 was still beyond the said excluded period as it was filed beyond a period of six months of expiry of said period. Hence, I hold that the appeal was filed even beyond the condonable period.
9. Commissioner (Appeals) statutorily couldn‟t condone the delay of over a month beyond two months from date of receipt of order-in-original as discussed above. It has held by Hon‟ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur in Civil Appeal No. 5949 of 2007 decided on 14.12.2007, It is held as follows:
"6. At this juncture, it is relevant to take note of Section 35 of the Act which reads as follows:
"35. APPEALS TO COMMISSIONER (APPEALS). (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to the Commissioner of Central Excise (Appeals) [hereafter in this Chapter referred to as the Commissioner (Appeals)] within sixty days from the date of the communication to him of such decision or order:
Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.6
ST/50246/2024
7. It is to be noted that the periods sixty days and thirty days have been substituted for within three months and three months by Act 14 of 2001, with effect from 11.5.2001.
8. The Commissioner of Central Excise (Appeals) as also the Tribunal being creatures of Statute are vested with jurisdiction to condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the Limitation Act ) can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only upto 30 days after the expiry of 60 days which is the normal period for preferring appeal. Therefore, 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."
10. Keeping in view the said decision and the apparent delay in filing the appeal before Commissioner (Appeals), we do not find any infirmity in the order under challenge. The order is upheld. Consequent thereto, the appeal is hereby dismissed.
(Dictated & pronounced in open Court) (Dr. Rachna Gupta) Member (Judicial) RM