M/S.Uday Lining Works vs Commissioner Of Central Excise & ...

Stay Petition No.SP-76244/14 & Appeal No.S.T. 76105/14 (Arising out of Order-in-Appeal No.52/RAN/2014 dated 19.06.2014 passed by the Commissioner(Appeals) of Central Excise & Service Tax, Ranchi.)

FOR APPROVAL AND SIGNATURE

HONBLE DR.I.P. LAL, MEMBER(TECHNICAL)

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 Authorative report or not?

3. Whether Their Lordship wishes to see the fair copy of the Order?

4. Whether Order is to be circulated to the Departmental Authorities?

M/s.Uday Lining Works Applicant (s)/Appellant (s)

Vs.

Commissioner of Central Excise & Service Tax, Ranchis

Respondent (s)

Appearance:

Shri Kamalesh Pandey, Autho.Representative for the Appellant (s) Shri A.K.Biswas, Supdt.(A.R.) for the Revenue (s)

CORAM:

Honble Dr. I.P.Lal, Member(Technical)

Date of Hearing/Decision :- 06.02.2015 Date of Pronouncement :- 06.02.2015

ORDER NO.FO/75040/2015

Per Dr. I.P. Lal.

1. This is an Application filed seeking waiver of demand of Service Tax of Rs.1,09,271/-, equal amount of penalty imposed on the Applicant under Section 78, penalty of Rs.5,000/- under Section 77 of the Finance Act, 1994 and interest on Rs.1,09,271/-.

2. Shri Kamalesh Pandey, Ld.Autho.Representative of the Applicant submits that in the present case Ld.Commissioner(Appeals) has rejected their appeal as there has been a delay of about 20 months in filing the Appeal. He submits that the Applicant came to know the issue of order in original passed by the Ld.Asstt. Commr. On receipt of the Demand notice dated 09.07.2013 for recovery of arrears arising from the impugned order. Thereafter they approached the Deptt. and received a copy of the impugned order on 28.02.2014. It is the contention that since they did not receive the order earlier, this aspect should have been considered by the Ld.Commissioner(Appeals). However, the Ld.Commissioner(Appeals) has observed that the Applicant was not able to substantiate that the order-in-original was not received by them earlier.

3. As per contra the Ld.A.R. for the Revenue submits that the period about 20 months has been consumed by the Applicant in filing the Appeal. He submits that under para 3 of the impugned order, the Ld.Commissioner(Appeals) has observed that the impugned order of the Ld.Assistant Commissioner was sent to Appellant through Speed Post vide EMS Bar Code EJ880601034IN on 16.03.2012, which was not returned back. Subsequently several letters have been issued and sent to the Appellant for payment of arrears arising out of the impugned order in which one letter dated 09.07.2013 which was received by the employee of the Appellant on 03.08.2013. On the basis of various submissions made by both the sides the Ld.Commissioner(Appeals) arrived at a conclusion that the Appellant was aware about the impugned order at least in August, 2013. No effort seem to have been made by them till February, 2014 i.e. for a period of six months. He submits that the Ld.Commissioner does not have power to condone the delay beyond a period of three months as held by Honble Supreme Court in Singh Enterprises Vs. Commr. ofC.Ex., Jamshedpur reported in 2008 (221) E.L.T. 163 (S.C).

4. Heard both sides and perused the record.

5. I find that in view of the ratio laid down by the Apex Court in case of Singh Enterprises (supra) the Ld. Commr. (Appeals) is not vested with power to condone the delay beyond 30 days in addition to the statutory limit of 60 days. In the result, I do not find any merit in the Appeal filed, accordingly, the same is dismissed. Stay Applications is also disposed of.

(Pronounced and dictated in the open court.)

SD/

(I.P.LAL) MEMBER(TECHNICAL) sm

3 Appeal No.S.T. 76105/14