M/S. B.E.C.S.Construction vs Commissioner Of Service Tax, Kolkata

(ARISING OUT OF ORDER-IN-APPEAL NO.06/ST/KOL/2013 DATED 20.02.2013 PASSED BY COMMISSIONER OF CENTRAL EXCISE (APPEALS-I), KOLKATA)

FOR APPROVAL AND SIGNATURES OF

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE 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?

2. Whether it should be released under Rule 27 of the : CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not ?

3. Whether Their Lordships wish to see the fair copy : of the Order? 4. Whether Order is to be circulated to the Departmental : Authorities ?

M/S. B.E.C.S.CONSTRUCTION

APPLICANT/APPELLANT VERSUS

COMMISSIONER OF SERVICE TAX, KOLKATA ...RESPONDENT

APPEARANCE:

SHRI K.P.DEY, ADVOCATE ASSISTED BY SHRI S.DEY, ADVOCATE FOR THE APPLICANT/APPELLANT;

SHRI A.K.BISWAS, A.R. (SUPDT.) FOR THE REVENUE.

CORAM:

DR. D.M.MISRA, HONBLE JUDICIAL MEMBER DR. I.P.LAL, HONBLE TECHNICAL MEMBER

Date of Hearing & Decision:12.01.2015

ORDER NO.FO/A/75022/15

Per Dr. D.M.Misra

This Application is filed seeking waiver of predeposit of Service Tax of Rs.8,54,461/- and equal amount of penalty imposed under Section 78 and penalty of Rs.5,000/- imposed under Section 77, of the Finance Act, 1994.

2. At the outset, ld. Advocate for the Applicant submits that their appeal was not decided on merit, but dismissed by the ld. Commissioner (Appeals) on the ground of delay in filing the appeal before him. He fairly accepts that the Order-in-Original was communicated to them on 26.07.2012, though received by them on 02.08.2012, but the appeal was filed on 17.12.2012, that is, more than three months, after communication of the Order-in-Original.

3. Ld. AR for the Revenue submits that the present Appeal is liable for dismissal as the appeal before the ld. Commissioner (Appeals), was filed beyond the statutory time-limit of two months and condonable limit of one month, in view of the judgment of the Honble Supreme Court in the case of Singh Enterprises vs. CCE, Jamshedpur, 2008(221)ELT 163(SC).

4. After hearing both sides for some time, we find that the present Appeal itself can be disposed of at this stage. Consequently, with the consent of both sides, the Appeal itself is taken up for final disposal.

5. We find that the ld. Commissioner (Appeals) had dismissed their appeal solely on the ground that the ld. Commissioner (Appeals) is not empowered to condone the delay beyond one month in addition to the statutory limit of two months for filing the appeal under Section 85 of the Finance Act, 1994 before him. We find force in the contention of the Ld. AR for the Revenue that in view of the law settled by the Honble Supreme Court in the case of Singh Enterprises (cited supra), the ld. Commissioner (Appeals) is not vested with the power to condone the delay beyond one month. Accordingly, we do not find any infirmity in the said Order. Consequently, the impugned Order-in-Appeal is upheld and the Appeal filed by the Appellant is dismissed. Stay Petition disposed off, accordingly.

(Dictated and pronounced in the open court.)

SD/-20.01.2015 SD/-20.01.2015 (I.P.LAL) (D.M.MISRA) TECHNICAL MEMBER JUDICIAL MEMBER

DUTTA/

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