2014 (9) TMI 599 - HC - Service Tax

Valuation - Goods Transport Agency - inclusion of amount received towards hamaii charges and handling charges - Held that - We are surprised and pained to note that the appellant in this case though claims that he filed an application for condonation of delay, we find no such application has been enclosed in the typed set of papers or there is no reference in the order of the Commissioner (Appeals) that there was an application for condonation of delay. Even assuming that it is within the condonable period, in the absence of any such application seeking condonation of delay, we fail to see how the Commissioner (appeals) could entertain the appeal. In fact, there was no application even before the Tribunal for the condonation of delay. Hence, we do not find any reason to entertain this appeal. - Decided against the assessee.

Summary

Issues:
1. Appeal against order of Customs, Excise and Service Tax Appellate Tribunal
2. Non-payment of service tax on collected amounts
3. Delay in filing appeal before Commissioner of Central Excise (Appeals)
4. Power of Commissioner (Appeals) to condone delay

Analysis:
1. The appellant, a private limited company operating as a Goods Transport Agency, filed a Civil Miscellaneous Appeal challenging the order of the Customs, Excise and Service Tax Appellate Tribunal. The company had collected amounts as hamaii charges and handling charges but failed to show this income in returns or pay service tax on it. The Assessing Authority issued a show cause notice, leading to a demand for service tax and penalty. The appellant contended that the amounts collected were reimbursement of actual expenses. The Commissioner of Central Excise (Appeals) dismissed the appeal as not maintainable due to a delay of 2 years, 6 months, and 27 days in filing. The Tribunal upheld this decision, citing a previous judgment that the Commissioner (Appeals) lacked the power to condone delays beyond the statutory period.

2. The High Court noted that there was no application for condonation of delay included in the appeal papers or mentioned in the Commissioner (Appeals) order. Despite the appellant's claim of filing such an application, no evidence supported this assertion. The absence of any application seeking condonation of delay raised doubts on how the Commissioner (Appeals) could entertain the appeal. Furthermore, there was no application for condonation of delay before the Tribunal either. Consequently, the Court found no basis to entertain the appeal and dismissed it at the admission stage, along with rejecting M.P.No.1 of 2014.