2019 (3) TMI 111 – CESTAT NEW DELHI – TMI – Condonation of delay in filing appeal – time limitation – relevant time for communication/service of order – appeal dismissed on the ground of limitation as the appeal was preferred beyond 7 years – entire case of the appellant rests on a ground that the change of address of the appellant was communicated by the appellant to the Department on 15.11.2010 by way of updating the same in Form ST-1. Despite that the Order-in-Original dated 27.01.2011 was been sent by the Department to the old address itself – Short payment of service tax.
–
Held that:- There was no occasion with the appellant to be aware about the said Order-in Original. It is impressed upon that it is only after the recovery proceedings initiated that the Order-in-Original came to the notice of the appellant and the appeal was preferred before Commissioner (Appeals).
–
It is apparent from grounds of appeal as well as from the application of appellant before Commissioner
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
as never been returned to the Department – the Commissioner (Appeals) was statutorily bound to not to condone the delay beyond 90 days.
–
There is opined no infirmity in the order under challenge. Delay of seven years is denied to be condoned – application dismissed. – Service Tax Appeal No.ST/53198/2018-ST [SM] – Final Order No. 50282/2019 – Dated:- 11-2-2019 – MRS. RACHNA GUPTA, MEMBER (JUDICIAL) Present for the Appellant: Mr. Himanshu Goel, C.A. Present for the Respondent: Mr. P.R. Gupta, D.R. ORDER PER: RACHNA GUPTA The appellant herein has preferred the impugned appeal against the order in Appeal No. 233 dated 25.06.2018 vide which the appeal of the appellant against the Order-in-Original dated 27.01.2011 was dismissed on the ground of limitation as the appeal was preferred beyond 7 years. 2. Factual matrix relevant for the impugned adjudication is that a show cause notice No.DL-II/ST/R-18/ST-3/07 dated 26.10.2007 was issued after a short payment of service tax amounting to &#
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
the said acknowledgement the Order-in-Original, though it was post said 15.11.2010 but was still issued on the previous address due to which it never came to the notice of the appellant, till the appellant received a recovery letter sent to his changed address i.e. in Gurgaon, he was not aware of the impugned proceedings against him. The O-I-O was never received by him till 27.03.2018. This is impressed upon as the sole reason for not filing any appeal before Commissioner (Appeals). It is further mentioned that additional grounds were taken before Commissioner (Appeals) even an application praying for rectification of mistake in the said order was filed requesting to take into consideration the additional grounds, but the said application was also dismissed vide order No. 518 dated 19.09.2018. Finally, impressing upon that the delay is due to the aforesaid reason, which was beyond the control of the appellant, the same is accordingly, prayed to be condoned and the order under challeng
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
has committed no error while dismissing the appeal on the ground of limitation. Appeal is accordingly, prayed to be dismissed. 6. After hearing both the parties and perusing the entire record, I observe and hold as follows:- 6.1 The entire case of the appellant rests on a ground that the change of address of the appellant was communicated by the appellant to the Department on 15.11.2010 by way of updating the same in Form ST-1. Despite that the Order-in-Original dated 27.01.2011 was been sent by the Department to the old address itself. Hence, there was no occasion with the appellant to be aware about the said Order-in Original. It is impressed upon that it is only after the recovery proceedings initiated that the Order-in-Original came to the notice of the appellant and the appeal was preferred before Commissioner (Appeals). 6.2 From these submissions and from the record, it is observed that the appellant preciously was placed at Presidential Business Part, C-9, Vasant Kunj, Delhi. Su
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
by an assessee in form ST-1 at the time of obtaining registration or he intends to furnish any additional information or detail, such change or information or details shall be intimated in writing by the assessee to the Jurisdictional Asstt. Commissioner or Dy. Commissioner of Central Excise, as the case may be, within a period of 30 days of such change. In view of this provision, even if, the sole argument of the appellant of the acknowledgment of Department in ST-3 return of the year 2010 is accepted, apparently and admittedly, same is beyond 3 years of the requisite change (address got changed in the year 2007 but ST-1 was filed in the year 2010). Vide the above rule period of only 30 days is prescribed for intimating the said change that too not merely by way of returns, but by a specific written intimation to the competent officer as mentioned in the rule. The appellant, apparently has failed to comply with the said statutory mandate. Though the appellant has relied upon some trad
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
tled law that the cause of delay which by due care and attention, the party could have avoided cannot be considered as a sufficient cause. 7. From the facts of the present case, it is clear beyond doubts that the appellant has been highly negligent about the status of investigation based whereupon the impugned SCN was issued. Rather appellant has nowhere denied receiving the show cause notice. Even presuming that even SCN was not received by the appellant, still there is no reasonable explanation as to why the address which got changed in the year 2007 was not brought to the notice of department till the year 2010 that too only by way of ST-1 Return. The otherwise apparent fact is that the impugned order was dispatched to the ppellant through the valid mode, as provided in law, and the same has never been returned to the Department. It is appellant s own admission during arguments that the purchase of his previous premises, Mr. Anand had handed over the envelope containing O-I-O. In th
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =
the explanation offered for the abnormal delay of nearly 20 months is that the appellant concern was practically closed after 1998 and it was only opened for some short period. From the application for condonation of delay, it appears that the appellant has categorically accepted that on receipt of order the same was immediately handed over to the consultant for filing an appeal. If that is so, the plea that because of lack of experience in business there was delay does not stand to be reason. I.T.C. s case (supra) was rendered taking note of the peculiar background facts of the case. In that case there was no law declared by this Court that even though the Statute prescribed a particular period of limitation, this Court can direct condonation. That would render a specific provision providing for limitation rather otiose. In any event, the causes shown for condonation have no acceptable value. In that view of the matter, the appeal deserves to be dismissed which we direct. There will
= = = = = = = =
Plain text (Extract) only
For full text:-Visit the Source
= = = = = = = =