Shlok Media Pvt. Ltd. Versus Commissioner of GST & Central Excise Mumbai West
Service Tax
2018 (10) TMI 97 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 27-9-2018
ST/87354/2018 – A/87453/2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
For the Applicant : Shri Devendra Jain, C.A.
For the Respondent : Shri Dilip Shinde, Assistant Commissioner (AR)
ORDER
Disposal of two appeals filed by the appellant before the Commissioner (Appeals III), GST & CX, Mumbai against adjudication orders confirming duty demand, interests and penalties solely on the ground of belated filing and non-payment of pre deposit is the subject matter of the appeal before this Tribunal.
2. Contention of the appellant, as submitted by Learned C.A. Shri Devendra Jain, is that Appellant could not file the said appeal before the Commissioner (Appeals) within two months of receipt of the order but filed the same within 30 days thereafter with a prayer for condonation of delay explainin
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15.06.2017 for which the Commissioner had rightly given his finding. Further he disputed the contention of the appellant that substantial portion of the duty liability was discharged. Since both the OIOs and OIA revealed that duty demand of Rs. 7,69,009/- and Rs. 73,28,013/- were confirmed by those orders along with interests and penalties, Section 35F bars the appeal bereft of pre deposit for which interference by this appellate court is uncalled for.
4. Perused the case record including the OIA. It is found from paragraph 18 of the OIA that OIOs were received admittedly by the appellant on 15.06.2017 that is after 9 months 14 days of the orders passed on 30/31.08.2016. It was also recorded by the Commissioner appeals that no documentary evidence was furnished by the appellant concerning the receipt of OIOs. At the same time he had brought it on record that the Punjab National Bank had taken possession of the immovable property of the appellant on 22.08.2016 that was just a week bef
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s on record and OIA, it is apparently clear that acknowledgment of receipt of orders in original by the appellant vide exhibit E contains the date of receipt as 15.06.2017. The ground of rejection of delay condonation petition by the Commissioner (Appeals) indicates that appellant had applied to the Department in writing on 24.08.2017 i.e. after two weeks of filling of appeal, as held by Commissioner, but no finding is forthcoming as to if any previous proof of delivery of OIOs on the appellant was established. Therefore the date refered in the acknowledgment vide Exhibit E has to be accepted as the date of delivery of OIOs on the appellant. The Commissioner has relied upon the decision of the Hon'ble Supreme Court pronounced in respect of Singh Enterprises Vs. Commissioner of C. Ex., Jamshedpur 2008 (221) E.L.T. 163 (S.C.) and given his finding that appeal before the Commissioner has to be filed within two months or at the maximum within the condonable delay period of further 30 days.
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ion that delay was occasioned deliberately.
6. In another decision, reported in (2001) 9 SCC 106, Hon'ble Supreme Court has observed that where the delay is of a few days, the court should adopt a liberal approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of few days. Whether the delay is inordinate, the consideration of prejudice to the opposite party will be a relevant factor calling for a more cautious approach, but in the latter case where the delay is of few days, no such consideration may arise, and such a case deserves a liberal approach. The Hon'ble Supreme Court also observed that in exercise of discretion on the facts of each case, keeping in mind that in construing the expression “sufficient cause”, the principle of advancing substantial justice is of prime importance.
7. In respect of nonpayment of statutory pre deposit amount for filing of appeal, appellant contention that 80 per cent of duty liability has been
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rit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation.
9. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (Appeals) under Section 35A and in view of Sub-Section 4 to Section 35A, such order of the Commissioner (Appeals), at the time of disposal of appeal before him, shall state the points for determination, the decision thereon and the reasons for such decisions. Hon'ble Supreme Court in Saheli Leasing & Industry Ltd. – 2010 (253) ELT 705 (SC) also proposed a guideline to be followed by quasi judicial authority. In the instant case such a decision with reason on the merit of the appeal is not forthcoming.
10. Since this Appellate Tribunal cannot go beyond the order of the
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