2018 (1) TMI 1345 - HC - Service Tax

Condonation of delay in filing appeal before the Commissioner (Appeals) - condonable period of limitation - CENVAT Credit - Held that - It is borne out from the record that while the original order was passed on 25.08.2014, the appellant filed an appeal before the Commissioner (Appeals) on 10.12.2015. It is not in dispute that the limitation for filing the appeal before the Commissioner (Appeals) is 30 days and the appellate authority is vested with the power to condone the delay of one month only - The CESTAT rendered a categorical finding that the fact that the appellant received the order in original on 17.09.2014 sufficiently establishes that the plea of the appellant that it received the order copy only on 26.10.2015 was factually wrong. Once it is found that the appellant s plea that it received the order copy only on 26.10.2015 as false, the question of entertaining any alternative plea does not arise. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Correctness of CESTAT order
2. Violation of natural justice by CESTAT
3. Opportunity to address disputed issues by CESTAT
4. Invocation of Section 5 of Limitation Act
5. Applicability of Section 27 of General Clauses Act
6. Applicability of Section 114 of Indian Evidence Act

Analysis:

Issue 1: Correctness of CESTAT order
The appellant, a service tax assessee, appealed against a demand raised by the Revenue for input credit. The appeal was dismissed by the Commissioner (Appeals) due to being filed beyond the limitation period. The CESTAT upheld this decision, stating that the appellant received the order copy on 17.09.2014, contradicting the appellant's claim of receiving it on 26.10.2015. The CESTAT also cited the Supreme Court judgment in Singh Enterprises vs. CCE, Jamshedpur, emphasizing the limited power to condone delays.

Issue 2: Violation of natural justice by CESTAT
The appellant argued that the CESTAT failed to consider the impact of a cyclonic storm that damaged the city and the appellant's records. However, the court rejected this argument, noting that the appellant's claim of receiving the order late due to the storm contradicted its primary claim. The court emphasized that the Commissioner (Appeals) cannot condone delays beyond the statutory one-month limit.

Issue 3: Opportunity to address disputed issues by CESTAT
The appellant contended that the CESTAT did not allow an opportunity to address the disputed issues, considering the cyclonic storm's impact. However, the court found that since the appellant's primary claim of receiving the order late was false, the question of entertaining alternative pleas did not arise. The court reiterated the limited authority to condone delays beyond one month.

Issue 4: Invocation of Section 5 of Limitation Act
The appellant sought to invoke Section 5 of the Limitation Act for condonation of delay due to the cyclonic storm. The court rejected this argument, emphasizing the appellant's inconsistent claims regarding the receipt of the order and reaffirming the statutory limitation on delay condonation.

Issue 5: Applicability of Section 27 of General Clauses Act
The appellant questioned the applicability of Section 27 of the General Clauses Act regarding the presumption of service of notice. However, the court did not delve into this issue in detail in the judgment.

Issue 6: Applicability of Section 114 of Indian Evidence Act
The appellant raised the issue of invoking Section 114 of the Indian Evidence Act for presumption of proof. However, the court did not provide a detailed analysis of this issue in the judgment.

In conclusion, the court dismissed the appeal, finding all substantial questions of law raised by the appellant to be answered against them. The judgment emphasized the importance of adhering to statutory limitation periods and the limited authority to condone delays in appellate proceedings.