2013 (4) TMI 69 - HC - Service Tax

Delay of more than two years in filling appeal - contention of the assessee that Form ST-4 appeal to be filed before the Commissioner of Central Excise (Appeals) was wrongly filed before the Commissioner of Service Tax - allegation against the assessee that he had discharged their service tax liability only on the service charges realised by them but had not paid the service tax on the reimbursement expenses realised by them from their clients - Held that - The assessee is stated to be a reputed partnership Firm of Chartered Accountants rendering Chartered Accountant Services. Having regard to the high profile of services rendered by the assessee , the submissions of assessee that the number of the Order in Original Number has been mistakenly typed in Form ST-4 cannot be countenanced. The assessee had also filed RTI application before the Commissioner of Service Tax requesting them to provide Inward Correspondence Numbers with date and copies of the respective folios of the IC Register. The information obtained from the Commissioner of Service Tax it is seen that the Commissioner of Service Tax has clearly stated that Appeal against the Order in Original No.96 of 2009 dated 16.12.2009 (filed on 12.03.2010) was not received in the Service Tax Commissionerate. As per the entry, when the appeal filed by the assessee against the Order in Original No.96 of 2009 dated 16.12.2009 was not received by the office of the Commissioner of Service Tax, the assessee cannot contend that appeal was filed before the wrong Forum and that would save the limitation. In the order passed in Order in Original dated 16.12.2009, appeal was filed before the Commissioner of Central Excise (Appeals) on 26.12.2011, acknowledged on 29.12.2011 beyond the period of three months plus discretionary period of three months. Tribunal rightly referred to the decision of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA holding that a statutory authority is not vested with power to exercise any discretion beyond the period stipulated by law and that the appeal filed beyond the prescribed period of limitation is not maintainable as being barred by limitation. It is well settled law that once the period of limitation has run itself out, the Appellate Authority does not have power to condone the delay in filing the appeal beyond the maximum period prescribed under the Act. Tribunal has rightly dismissed the appeal. No substantial questions of law involved in this appeal and the appeal is dismissed. Against assessee.

Summary

Issues Involved:
1. Whether the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) was correct in dismissing the appeal without considering its merits.
2. Whether the Tribunal correctly held that the appeal was not filed within the prescribed time despite evidence suggesting timely filing before the wrong forum.
3. Whether reimbursements are subject to service tax prior to 19.04.2006.
4. Whether the demand of service tax for the period from April 2003 to March 2006 is valid under Section 67 of the Finance Act, 1994, given that the Service Tax (Determination of Value) Rules, 2006, were not in existence at that time.

Issue-wise Analysis:

1. Dismissal of Appeal Without Considering Merits:
The Tribunal dismissed the appeal without delving into the merits of the case. The assessee argued that the Tribunal should have considered the extensive evidence provided, which indicated that the appeal was initially filed in the wrong forum due to a mistake. The Tribunal, however, focused solely on the procedural aspect, specifically the timeliness of the appeal filing, and did not evaluate the substantive issues of the case.

2. Timeliness of Appeal Filing:
The core issue was whether the appeal was filed within the prescribed period. The assessee received the order on 30.12.2009 and filed an appeal on 12.03.2010 with the Commissioner of Service Tax instead of the Commissioner of Central Excise (Appeals), the correct forum. Upon realizing the mistake, the assessee refiled the appeal on 26.12.2011. The First Appellate Authority and the Tribunal both found that the appeal was filed beyond the allowable period, including the discretionary extension period of three months. The Tribunal noted that there was no substantive evidence to support the claim that the appeal was initially filed with the Commissioner of Service Tax, and Section 5 of the Limitation Act does not apply to proceedings under the Finance Act, 1994.

3. Service Tax on Reimbursements Prior to 19.04.2006:
The judgment did not explicitly address whether reimbursements were subject to service tax prior to 19.04.2006. The primary focus was on procedural compliance and the timeliness of the appeal rather than the substantive tax liability issues.

4. Validity of Service Tax Demand for April 2003 to March 2006:
The demand for service tax covered the period from April 2003 to March 2006. The assessee contended that the Service Tax (Determination of Value) Rules, 2006, were not in existence during this period, questioning the validity of the demand. However, the Tribunal did not address this issue in detail, as the appeal was dismissed on procedural grounds related to the timeliness of filing.

Conclusion:
The Tribunal's decision was primarily based on the procedural aspect of the appeal's timeliness. The Tribunal and the First Appellate Authority found no evidence to support the claim that the appeal was initially filed in the wrong forum within the prescribed period. The substantive issues regarding the merits of the case and the validity of the service tax demand were not considered due to the procedural dismissal. The appeal was dismissed, affirming that the statutory authority cannot condone delays beyond the legally stipulated period, referencing the precedent set in Singh Enterprises v. Commissioner of Central Excise, Jamshedpur.