2019 (3) TMI 305 – CESTAT KOLKATA – TMI – Appealable Order or not? – communication dated 17.07.2018 – Section 86(1) of the erstwhile Finance Act, 1994 – Held that:- Circular dated 28.02.2015 of Central Board of Excise & Customs clarified that the Recovery Officer do have power to add, to amend, to vary or review any Garnishee Notice issued. However, the interest of Revenue has to be suitably safeguarded. It is stated in the said Circular that the facility to pay the arrears in installments shall generally be granted to a reasonable case of payment of arrears in installments as the company being under temporary financial distress. The Ld. Commissioner may cancel the permission in case of default in the payment of installments or when the company is becoming financial unviable and there is livelihood of winding up of business.
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The appellant by letters dated 17.01.2017 and 04.01.2018 requested the Ld. Commissioner for payment of arrears in installments, which is backed by the Board
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ellant (s) Shri A. K. Biswas, Suptd. (AR) for the Respondent(s) ORDER Per Shri P. K. Choudhary: The appellant filed an application for condonation of delay of 65 days in filing the appeal. The matter was heard at length on 18.01.2019. 2. After hearing both the sides on the application for condonation of delay in filing appeal, I find that the delay has occurred owing to sickness of the Counsel. After considering the submission of both sides, I find that there is sufficient reason for condoning the delay, and I do so. 3. With the consent of both sides, the appeal itself is taken up for hearing. 4. The facts of the case in brief are that the appellant has filed this appeal against the communication dated 17.07.2018 of the Deputy Commissioner (Tech) whereby it was communicated that the Commissioner has withdrawn the facility for allowing payment of outstanding Service Tax by installments, as allowed by the earlier order dated 10.04.2018 issued by the Assistant Commissioner (Tech) with the
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f outstanding demand by installments. He relied upon the following decisions:- (a) Commissioner of Central Excise Vs Girish B Mishra Order dated 13.02.2013 in Tax Appeal No. 951 of 2012 of the Hon ble Gujarat High Court. (b) C. C. E. B. Maharashtra State Bureau (2013) 35 Taxmann Com. 8 (CESTAT). The Learned A. R. for the Revenue strongly opposed submission of the Leaned Counsel. It is submitted that the Board Circular is an executive order. 6. On perusal of the impugned communication dated 17th July, 2018 of the Learned Commissioner, I find that by earlier order dated 10.04.2018, the Ld. Commissioner allowed payment of the outstanding Service Tax dues in installments. It is observed in the impugned communication dated 17.07.2018 before the Bench that since the appellant had defaulted in the monthly payment of installments as stipulated vide letter dated 10th April, 2018, the facility for allowing of payment of outstanding Service Tax dues in installments as allowed, has been withdrawn
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from April 2018 to November 2018 and the balance amount of ₹ 3,25,505/- would be paid by December 2019. It is submitted that there was delay in payment of dues for the month of June 2018 and on 13.07.2018 payment was made for ₹ 7,00,000/- for the months of June 2018 and July 2018. There was no default of payment of installments while passing the impugned Order dated 17th July, 2018. 8. The Ld. Authorized Representative for the Revenue submits that the Board Circular dated 28th February, 2015 clearly stated that in case of default in payment of installments, the permission shall be withdrawn. It is submitted that the appellant failed to pay the installments for the month of June 2018 and therefore, the Ld. Commissioner withdrew the earlier permission. 9. After hearing both sides and on perusal of the record, I find that Circular dated 28.02.2015 of Central Board of Excise & Customs clarified that the Recovery Officer do have power to add, to amend, to vary or review any
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ted in the monthly payments, the Ld. Commissioner has withdrawn the facility for payment of outstanding dues in installments, against which the appellant filed this appeal. 10. In the present case, I find that the appellant failed to pay only one installment for the month of June 2018 within the stipulated period. In fact, the installment for the month of June was paid in the next month on 13.07.2018 alongwith the installment of July 2018. Therefore, the impugned Order dated 17.07.2018 was issued. It seems that the payment of installments of June and July 2018 as communicated by the appellant by letter dated 13.07.2018 may not be noticed while passing the order dated 17.08.2018. The order aspect of this case is that the appellant by letter dated 20.08.2018 informed the department that they have paid ₹ 49,00,000/- vide two challans for the balance amount. It shows that the interest of Revenue has been suitably safeguarded. In this situation, the impugned order dated 17.07.2018 for
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