Ichibaan Automobiles Pvt. Ltd vs Commissioner Of Central Excise, ...

[Arising out of Order-in-Appeal No. 45/2010 (H-II) S. Tax dated 27/04/2010 passed by Commissioner of Central Excise and Service Tax, HYDERABAD-II( Appeal).]

For approval and signature:

HON'BLE SHRI 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? No 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

Ichibaan Automobiles Pvt. Ltd 9th Floor, Grande Palladium, 175 CST Road, Santacruz (e), MUMBAI, - MH Appellant(s)

Versus

Commissioner of Central Excise, Customs and Service Tax HYDERABAD-II L.B STADIUM ROAD, BASHEERBAGH, HYDERABAD, - 500004 ANDHRA PRADESH Respondent(s)

Appearance:

Mr. T. Srinivasa, CA T. SRINIVASA & CO CHARTERED ACCOUNTANT, B-1, MANISH TOWERS, 84, J.C. ROAD, BANGALORE. For the Appellant

Dr. A.K.Nigam, Addl. Commissioner (AR) For the Respondent

Date of Hearing: 20/02/2015

Date of Decision: 20/02/2015

CORAM:

HON'BLE SHRI B.S.V.MURTHY, TECHNICAL MEMBER

Final Order No. 20435 / 2015

Per : B.S.V.MURTHY

Appellant is seeking condonation of delay of more than 901 days. The learned CA submitted that there was no delay at all. He submitted that order-in-appeal was not at all received by them and only when the department proceeded to recover the adjudication dues they came to know that an order-in-appeal has been passed. Thereafter they obtained a copy and within a month of obtaining a copy, they filed the appeal. He submits that the order-in-appeal was sent by speed post and despatch by speed post is not a proper mode of service in accordance with the provisions of law and on this ground itself, the delay is required to be condoned.

2. Learned AR would rely upon the decision of Honble High Court of Orissa in the case of M/s. Jay Balaji Jyoti Steels Ltd. vs. CESTAT and Ors.: 2015-TIOL-164-HC-ORRISA-ST to submit that speed post is also registered post and service by speed post is to be considered as equivalent to service by registered post.

3. I have considered the submissions. Even though speed post is considered as equivalent to registered post, recently the Tribunal has rendered another decision wherein it has been held that mere proof of despatch is not sufficient and according to provisions of Section 37C(2), only when a decision, order, summons or notice is tendered or delivered by post, the provisions of statute can be considered to have been fulfilled. Admittedly in this case department does not have the acknowledgement and in view of the fact that subsection (2) of Section 37C provides that any decision or order can be considered as served when it is tendered or delivered by post, prima facie unless the proof of delivery is available, it cannot be said that obligation cast on the department has been fulfilled. Therefore, even if the order is sent by speed post, if the evidence is available with the department that it has been delivered, the decision of Honble High Court of Orissa would be applicable. Since the appeal has been filed within one month of the actual date of receipt according to the CA, the appeal has to be considered to have been filed in time.

3.1 In any case even if the above legal arguments do not hold good, in the interest of justice, a view can always be taken to condone the delay and there is no time limit fixed in the statute for condonation of delay by the Tribunal. Therefore, having regard to the explanation offered and having regard to the fact that appellant had closed down the business in Hyderabad soon after the order-in-appeal was issued and also considering the fact that it is not in the interest of any appellant to file the appeal with such a lot of delay. Benefit of doubt can be extended to the assessee. Under the circumstances, the delay is condoned even if it has occurred as per the Revenue and after hearing both the sides, I find that the appeal itself can be decided. Accordingly, the requirement of pre-deposit is waived and appeal is taken up for final decision.

4. The appellant is a rent-a-cab operator and they have purchased cars to be operated as cabs and took CENVAT credit of the duty paid on the cars. Credit has been denied on the ground that cars were purchased from unregistered dealers. It was submitted that even though at the time of sale of the cars the dealer was not registered, subsequently the dealer had registered himself and therefore credit is admissible. Learned CA relied upon three decisions.

i. C. Metric Solution (P) Ltd. vs. CCE: Final Order No.A/790/2012-WZB/AHD.

ii. M/s. Well known Polyesters Ltd. vs. CCE, Vapi: 2011-TIOL-989-CESTAT-AHM.

iii. M/s. Sonam Regency Inn Pvt. Ltd. vs. CST, Delhi.

4.1 I find that all the decisions relate to the availment of credit before registration by the receiver of inputs and not by the supplier. Since in any case the matter is proposed to be remanded, I would not like to express any opinion on this issue and the original authority will be free to consider the issue in the light of the decision which may be cited before me and law applicable.

4.2 Further, it is also noticed that none of the documents have been verified as to the correctness and eligibility because the credit has been rejected on the ground that the inputs were supplied by unregistered dealers. This is another reason why matter is required to be remanded.

4.3 It was also submitted that appellant is eligible for 60% abatement and this also has not been extended. This aspect is also required to be examined and is required to be remanded.

5. In view of the above, the matter is remanded to the original adjudicating authority who shall adjudicate the matter afresh after giving reasonable opportunity to the appellant to present their case. COD application, stay petition and appeal get disposed of.

(Order pronounced in open court)

B.S.V.MURTHY TECHNICAL MEMBER rv 4