CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
West Block No.2, R. K. Puram, New Delhi, Court No. 1
Date of hearing/decision: 07.07.2014
For Approval and Signature:
Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R. K. Singh, Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
S. T. Appeal No. 55688 of 2013 and S.T. stay No. 55922 of 2013
(Arising out of order in appeal No. 192/ST/Ghaziabad/2012 dated 29.10.2012 passed by the Commissioner (Appeals) Customs, Central Excise & Service Tax, Ghaziabad).
M/s Mannat Farms Appellants
Vs.
CCE & ST, Ghaziabad Respondent
Appearance: Sh. B. K. Gupta, Advocate for the appellant
Sh. Govind Dixit, DR for the Revenue
Coram: Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R.K. Singh, Member (Technical)
Final Order No. 52751 /2014
Per: Justice G. Raghuram:
The Joint Commissioner, Customs & Central Excise, Ghaziabad passed an adjudication order dated 13.06.2012 confirming the service tax demand of Rs.20,54,284/- apart from interest and penalties on the ground that the petitioner appellant had provided mandap keeper service during April 2010 to November 2010. The appellant failed to remit service tax but has under remitted the service tax due prior to the issuance of the show cause notice.
2. Aggrieved, the appellant preferred an appeal to the Commissioner (Appeals), Customs, Central Excise & Service Tax, Ghaziabad. The appeal was dismissed by the impugned order dated 16.11.2012 passed by the learned appellate Commissioner. The appellant preferred the appeal (to the appellate Commissioner) on 18.09.2012 against the primary adjudication order which was received on 21.06.2012, with a delay of 29 days beyond the normal period of limitation specified in Section 85(3A) of the Finance Act, 1994. It is the admitted factual scenario that the appeal was filed with a delay falling within the discretionary ambit of the appellate Commissioner to condone, which is 30 days after the period of two months from the relevant date. The appellant pleaded that the wife of the proprietor of the appellant (a proprietary concern) was ill and required the personal attention of the proprietor. A medical certificate issued by the family physician was produced at the time of personal hearing. The appellate Commissioner however observed that no specific role of the proprietor s wife is observed. in the day-to-day affairs of the firm and that nothing was brought on record to show that illness of the wife had affected the business of the appellant.
3. We are satisfied that this is an extremely arbitrary exercise of discretion. Condonation of delay particularly in the circumstances pleaded by the appellant should be liberally considered. It is perverse for the learned appellate Commissioner to hold that care of a spouse and the need for her attention is not a relevant criterion. The discretion to condone the delay authorised to the appellate Commissioner is not the personal discretion of the Commissioner; it is the discretion of the law and should be exempted appropriately as dictates of law require. The order is whimsical inviting invalidation and is accordingly set aside. He appeal is allowed. The matter is remanded to the learned Commissioner (Appeals), Ghaziabad, who shall proceed to adjudicate upon the appeal on merits. No costs.
(Justice G. Raghuram)
President
(R. K. Singh)
Member (Technical)
Pant
West Block No.2, R. K. Puram, New Delhi, Court No. 1
Date of hearing/decision: 07.07.2014
For Approval and Signature:
Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R. K. Singh, Member (Technical)
1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 26 of the CESTAT (Procedure) Rules, 1982?
2 Whether it should be released under Rule 26 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3 Whether their Lordships wish to see the fair copy of the Order?
4 Whether Order is to be circulated to the Departmental authorities?
S. T. Appeal No. 55688 of 2013 and S.T. stay No. 55922 of 2013
(Arising out of order in appeal No. 192/ST/Ghaziabad/2012 dated 29.10.2012 passed by the Commissioner (Appeals) Customs, Central Excise & Service Tax, Ghaziabad).
M/s Mannat Farms Appellants
Vs.
CCE & ST, Ghaziabad Respondent
Appearance: Sh. B. K. Gupta, Advocate for the appellant
Sh. Govind Dixit, DR for the Revenue
Coram: Hon ble Mr. Justice G. Raghuram, President
Hon ble Mr. R.K. Singh, Member (Technical)
Final Order No. 52751 /2014
Per: Justice G. Raghuram:
The Joint Commissioner, Customs & Central Excise, Ghaziabad passed an adjudication order dated 13.06.2012 confirming the service tax demand of Rs.20,54,284/- apart from interest and penalties on the ground that the petitioner appellant had provided mandap keeper service during April 2010 to November 2010. The appellant failed to remit service tax but has under remitted the service tax due prior to the issuance of the show cause notice.
2. Aggrieved, the appellant preferred an appeal to the Commissioner (Appeals), Customs, Central Excise & Service Tax, Ghaziabad. The appeal was dismissed by the impugned order dated 16.11.2012 passed by the learned appellate Commissioner. The appellant preferred the appeal (to the appellate Commissioner) on 18.09.2012 against the primary adjudication order which was received on 21.06.2012, with a delay of 29 days beyond the normal period of limitation specified in Section 85(3A) of the Finance Act, 1994. It is the admitted factual scenario that the appeal was filed with a delay falling within the discretionary ambit of the appellate Commissioner to condone, which is 30 days after the period of two months from the relevant date. The appellant pleaded that the wife of the proprietor of the appellant (a proprietary concern) was ill and required the personal attention of the proprietor. A medical certificate issued by the family physician was produced at the time of personal hearing. The appellate Commissioner however observed that no specific role of the proprietor s wife is observed. in the day-to-day affairs of the firm and that nothing was brought on record to show that illness of the wife had affected the business of the appellant.
3. We are satisfied that this is an extremely arbitrary exercise of discretion. Condonation of delay particularly in the circumstances pleaded by the appellant should be liberally considered. It is perverse for the learned appellate Commissioner to hold that care of a spouse and the need for her attention is not a relevant criterion. The discretion to condone the delay authorised to the appellate Commissioner is not the personal discretion of the Commissioner; it is the discretion of the law and should be exempted appropriately as dictates of law require. The order is whimsical inviting invalidation and is accordingly set aside. He appeal is allowed. The matter is remanded to the learned Commissioner (Appeals), Ghaziabad, who shall proceed to adjudicate upon the appeal on merits. No costs.
(Justice G. Raghuram)
President
(R. K. Singh)
Member (Technical)
Pant
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