Commissioner Of Customs ,Central ... vs Shri Mohammad Ghouse
- CitationAppeal No. 05/2012 dated 28/09/2012 passed by the Commissioner of Central Excise, Customs a
Ratio decidendi
The rule this decision rests on
The limitation period for an appeal under the Service Tax law runs from the date on which the Revenue receives the impugned order, and the Revenue cannot wait for a marked or certified copy before the period begins to run; where the Revenue has received the order and then delays for a long period in procuring a copy with no adequate explanation, the delay is not condonable. No leniency is to be extended to the Revenue for delay in filing an appeal merely because it is a Government entity; the law of limitation applies equally to the Government and its officers, who are expected to act within the framework of the law, and administrative reasons do not by themselves justify condonation of delay.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
[Arising out of Order-in-Appeal No. 05/2012 dated 28/09/2012 passed by the Commissioner of Central Excise, Customs and Service Tax, Hyderabad-II ( Appeals) ]
For approval and signature:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
1 Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? Yes 3 Whether Their Lordships wish to see the fair copy of the Order? Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes
Commissioner of Customs ,Central Excise and Service Tax Hyderabad-IV Posnett Bhavan, Tilak Road, Ramkote, Hyderabad 500 001 Andhra Pradesh Appellant(s)
Versus Shri Mohammad Ghouse H. No. 4-34-158, New Shapoor Nagar, Jedimetla , R.R. Dist. Hyderabad 500 037 Andhra Pradesh Respondent(s)
Appearance:
Mr. S. Teli, AR For the Appellant
Mr. R. Muralidhar, Advocate B 201, Highrise Aptmts, 1-3-1024/8, Lower Tankbund Road, Hyderabad 500 080 For the Respondent
Date of Hearing: 30/03/2015 Date of Decision: 30/03/2015 CORAM:
HON'BLE Mrs. ARCHANA WADHWA, JUDICIAL MEMBER HON'BLE Mr. B.S.V. MURTHY, TECHNICAL MEMBER
Final Order No. 20887 / 2015
Per: ARCHANA WADHWA
The present appeal stands filed by the Revenue along with condonation of delay application.
2. After hearing both the sides it is seen that the impugned order was passed by the Commissioner (Appeals) on 28.09.2012, vide which he rejected the Revenues appeal filed before him, inasmuch as the order-in-original was also in favour of the respondent. The sequences of dates thereafter, as raised in the COD application are as under:
Copy of said OIA has been received in Appeals Section of Hyderabad IV Commissionerate on 12.02.2013 from the Superintendent of Service Tax (Tech.), Hyderabad IV Commissionerate. Subsequently, this office vide letter C.No. V/R/01/2013-Appeals-IV dated 27.02.2013 requested the Commissioner (Appeals-II), Hyderabad to forward the said order marked to this office so as to take necessary action followed by reminders on 27.03.2013, 24.05.2013, 26.06.2013, 01.07.2013 and 04.09.2014. Copy of OIA No. 05/2012 (H-IV) ST dated 28.09.2012 vide Commissioner (Appeals-II) letter A.No. 06/2012 (H.IV) ST dated 16.09.2014 has been received in this office only on 18.09.2014 from the Commissioner (Appeals-II)s Office. The appeal is filed within the time limit of 3 months from this date i.e. 18.09.2014. As seen from the above paragraph reproduced from the COD application filed by the Revenue, the order was received by the office of the Appeals Section of the Commissionerate on 12.02.2013. Thereafter the said office took correspondence with the office of the Commissioner (Appeals) on 5 different dates as reflected in the application. It is seen that in between for a period of around 2 years, no action was taken by the said office and thereafter as per the Revenue the said order was received by them on 18.09.2014 and the appeal was filed on 26.11.2014.
3. We really failed to understand that when the order of Commissioner (Appeals) was admittedly received by the Appeals Section of the Hyderabad Commissionerate on 12.02.2013 and they were in a position to file the appeal within a period of 3 months from that date, the correspondence entertained during the intervening period for supply of a marked copy is a futile exercise. Appeal should have been filed on the receipted copy and the period of limitation would start from the date of receipt of the said order of Commissioner (Appeals) w.e.f. 12.02.2013.
4. The question which arises is as to whether the Revenue, being a Government entity, should be shown leniency on account of administrative reasons. The said issue was considered by the Honble Supreme Court in the decision of Office of the Chief Post Master General Vs. Living Media India Ltd. [2012 (277) E.L.T. 289 (S.C)], and the delay of 427 days was not condoned. In a similar set of circumstances, the Honble Supreme Court observed that affidavit of department indicating awareness of date of impugned judgment of High Court and application for certified copy have not been filed nearly 4 months after the date and receipt cannot be considered to be a plausible and acceptable explanation. The Honble Supreme Court observed that there is no explanation coming from the Revenue for not applying for the certified copy on date of judgment or within the prescribed period and not explaining the delay at every stage, will result in denial of condonation.
By applying the ratio of the above decision to the facts of the case, we find that admittedly the impugned order was received by the Revenue on 12.02.2013. The law of limitation under the Service Tax matters started running from the date of receipt of the impugned order. Even thereafter the Revenue entered into a correspondence with the office of Commissioner (Appeals) for providing a copy marked for them. We do not understand the above action of the Revenue inasmuch as the impugned order which has been admittedly received by them must have been marked for the Revenue only. In any case after making such correspondence for supply of the copy, no efforts were made to procure the copy and there was a gap of more than one year between the last correspondence made by the Revenue and the actual date of procurement of the copy from the office of Commissioner (Appeals). As observed by the Honble Supreme Court in the above referred case law of limitation is applicable to everybody including the Government and the Revenue officers who are well conversant with the law. There is an equal responsibility on the Government officers to take actions within the frame work of the law. No leniency can be shown to the Revenue on account of being Government entity.
5. Inasmuch as the delay in filing the appeal by the Revenue is to the extent of 562 days, we find no justifiable reasons to condone the same. We also note that both the authorities below have held in favour of the respondents.
6. COD application is accordingly rejected. As a consequence, the appeal filed by the Revenue is also rejected as barred by limitation.
(Order pronounced and dictated in open court)
(B.S.V. MURTHY) TECHNICAL MEMBER (ARCHANA WADHWA) JUDICIAL MEMBER
iss
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