Shri Harishbhai R Aahir vs Commissioner Of Central Excise & S.T., ...

(Arising out of OIO-SUR-EXCUS-001-COM-016-14-15 dated 11.06.2014, passed by Commissioner Central Excise, Service Tax & Customs, Surat)

Shri Harishbhai R Aahir : Appellant (s)

VERSUS

Commissioner of Central Excise & S.T., Surat : Respondent (s)

Represented by :

For Appellant (s) : Shri Jigar Shah, Advocate For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

1 Whether Press Reporter 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 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

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

Date of Hearing / Decision : 09.06.2015

ORDER No. A/10781/2015 Dated 09.06.2015

Per : Mr. P.K. Das;

The applicant filed this application for condonation of delay of filing appeal of 319 days in.

2. The Learned Advocate on behalf of the applicant submits that the applicant is a proprietorship firm. He submits that the proprietor was ill during the relevant period. In support of his contention he drew attention of the Bench to the affidavit, as reproduce below:-

1. Mr. Harishbhai Ravjibhai Ahir, proprietor of M/s. Ahir Construction, STC: AAZPA7867QST001 and key managerial person of M/s. Ahir Construction (Mrs. Renukaben Harishbhair Ahir) STC: AGMPA8913ASD002, hereby declare on oath that I am the only person looking after affairs of both the firms and I am responsible and authorised person for income, expenditure, accounting and legal issues of both the firms. I have been suffering from severe health issues since last one and half years and I have been admitted to Motiben Dalvi Hospital, Mumbai and Care Nursing Home Hazira Hospital, Surat repeadely. Due to my recurring health problems, my business and family was economically disturbed. Hence, I could not give due attention towards the issues pending with service tax department. Today, on 18th day of March, 2015, I have been telephonically informed by the Superintendent of service tax that OIO No. OIO-SUR-EXCUS-001-COM-016-14-15 dated 11.06.2014 has been issued in our case. On going through records, I found that the said order is pending to be appealed against. Herewith, I solemnly declare that delay in filing appeal is solely due to my consistent ill health during last one and half year.

3. He submits that in identical situation, the Hon'ble Gujarat High Court in the case of Plastic Colour Corporation vs. Income Tax Officer, order dated 06.05.2014 in Civil Application No. 132 of 2014 in Stamp No. 397 of 2014 condoned the delay. Learned Advocate produced internet copy of the order before the Bench. The relevant portion of the said order is reproduced below:-

This is an application for condoning the delay of 415 days caused in filing the Tax Appeal. Though delay is substantial, it is explained by mentioning that the assessee is a partnership firm and Shri Nandkishore Sakarlal, who looks after the partnerships financial and tax matters has not been keeping good health since last couple of years, during which he had been admitted for eight months in the hospital. A copy of the medical certificate is also produced on record. We notice that the said Shri Nandkishore Sakarlal is aged about ninety years. Under the circumstances, delay is condoned. Rule made absolute.

4. Learned Authorised Representative on behalf of the Revenue strongly opposed this application, for having not filed a medical certificate. It is also submitted that the applicant had not mentioned his age in the affidavit..

5. After hearing both the sides and on perusal of the records, we find that the reason given for delay in filing appeal is that the applicant was suffering from severe health issues since last one and half year and was admitted to Motiben Dalvi Hospital, Mumbai and Care Nursing Home Hazira Hospital, Surat. We agree with the submission of the learned Authorised Representative for the Revenue that the application is without any support of evidence. It is noted that the Honble Gujarat High Court, after considering the facts and circumstances of the case and the age of the applicant, about ninety years and on the basis of medical certificate, had condoned the delay in filing the appeal. The facts in the case of Plastic Colour Corporation vs. Income Tax Officer (supra) are not applicable to the present case.

5. Accordingly, we do not find any merit to condone the delay in filing appeal. The application for condonation of delay is rejected. Consequently, the appeal filed by the appellant is also dismissed.

(Dictated and pronounced in the Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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