2012 (10) TMI 912 - HC - Service Tax

Condonation of delay in filing an appeal before Commissioner (appeals) - Claim of exemption from the levy of service tax - As aggregate value of taxable service was less than Rs.10 Lakhs - delay in filing appeal - Held that - Petitioner has stated that they had entrusted Ext.P5 order with their accountant & it was on account of his default that the appeal happened to be not filed. Considering the substance in what the petitioner says no reason to disbelieve that averment, there is no reason why the petitioner should be deprived of an opportunity to file an appeal against Ext.P5. Thus it will be open to the petitioner to file appeal against Ext.P5 within two weeks from today before the appellate Commissioner in which event, appellate Commissioner shall entertain the appeal and deal with the same along with Ext.P6 appeal, ignoring the delay that has occurred, in the meanwhile - in favour of assessee as directed.

Summary

Issues:
1. Dispute over the levy of service tax on the petitioner for the year 2008-09.
2. Claim of exemption based on the aggregate value of taxable service being less than Rs.10 Lakhs.
3. Rejection of exemption claim due to the petitioner's aggregate value of taxable service exceeding Rs.10 Lakhs in the previous year.
4. Pending appeal against the assessment for the previous year.
5. Petitioner's accountant's default in not filing the appeal against the levy.

Analysis:
The judgment addresses a dispute regarding the levy of service tax on the petitioner for the year 2008-09. The petitioner claimed exemption from the tax, arguing that the aggregate value of their taxable service was below Rs.10 Lakhs, citing Exts.P2 and P2(a). However, this claim was rejected based on the petitioner's previous year's aggregate value of taxable service exceeding Rs.10 Lakhs. The petitioner had filed an appeal, Ext.P6, against the assessment for the previous year, which was pending consideration. The court noted that the time for filing an appeal against the current levy had expired, but acknowledged the petitioner's claim that their accountant's default led to the non-filing of the appeal.

The judgment emphasized that the petitioner should not be deprived of the opportunity to file an appeal against the current levy, especially considering the accountant's default. The court directed the petitioner to file an appeal against the current levy within two weeks, allowing the appellate Commissioner to entertain and address the appeal alongside the pending Ext.P6 appeal, disregarding any delay that had occurred. This decision aimed to ensure the petitioner's right to appeal and have their case considered fairly, taking into account the circumstances surrounding the non-filing of the appeal against the levy.