2022 (10) TMI 630 - HC - Service Tax

Condonation of delay in filing appeal - sufficient reason for delay provided or not - section 5 of Limitation Act - Appropriate forum - Section 35 L of the Act of 1944 - HELD THAT - The appellant has not properly explained the delay in filing this Central Excise Appeal. The appellate Tribunal dismissed the appeal on 11.09.2015. The appellant received the certified copy on 04.01.2016 and filed a review petition which came to be dismissed on 14.02.2017. Thereafter, a writ petition was filed which was dismissed as withdrawn on 04.09.2017 with the liberty to file Central Excise Appeal. The appellant withdrew the appeal knowingly that the remedy of appeal is available despite that a review petition was filed before this High Court. Thereafter without withdrawing the Review Petition this Appeal has been filed on 12.02.2019,i.e, after the lapse of one and half years. Whereas the limitation of filing this appeal is 180 days. Even if the limitation of 180 days is calculated from the date of withdrawal of the writ petition 04.09.2017, even then this appeal is hopelessly time barred. The appeal suffers from delay and latches hence, a delay of 545 days is not liable to be condoned. Even otherwise the appellant is challenging the taxability of the services rendered by him and not the amount of tax or value of the goods, therefore, Shri Prasad, learned counsel for the respondents has rightly objected to the maintainability of this appeal filed under Section 35 G of the Central Excise Act 1944. In view of Section 35 L of the Act of 1944, the appeal lies before the Apex Court. Appeal dismissed.

Summary

Issues:
Delay in filing the appeal under Section 5 of the Limitation Act for condonation of delay; Maintainability of the Excise Appeal under Section 35 G of the Central Excise Act 1944.

Analysis:
The appellant filed an appeal challenging orders passed by the Customs Excise & Service Tax Appellate Tribunal, which dismissed the appeal and review petition. The appellant sought condonation of delay under Section 5 of the Limitation Act due to the appeal being barred by 545 days. The case involved a show cause notice regarding short payment of service tax and non-filing of correct service tax returns, leading to a demand raised by the Service Tax Department. The Joint Commissioner affirmed the recovery of service tax and imposed penalties. The appellant's appeals before the Commissioner (Appeal) and the Customs, Excise & Service Tax Appellate Tribunal were dismissed. Subsequently, a review petition and a writ petition were also unsuccessful.

The appellant's delay in filing the appeal was attributed to wrong advice initially, leading to the filing of a writ petition and a review petition before finally filing the Central Excise Appeal. The appellant contended that the delay was unintentional but bona fide. However, the respondent opposed the application for condonation of delay, arguing that the delay was inordinate and inadequately explained. The respondent also raised the issue of maintainability of the Excise Appeal under Section 35 G of the Central Excise Act 1944, stating that the appeal should lie before the Apex Court as per Section 35 L of the Act.

The High Court found that the appellant failed to adequately explain the delay in filing the Central Excise Appeal, which was time-barred by 545 days. Despite receiving certified copies of orders and having opportunities to appeal, the appellant's actions contributed to the delay. The court noted that the appellant was challenging the taxability of services, not the tax amount or value of goods, making the appeal not maintainable under Section 35 G of the Act. Therefore, the court dismissed the appeal, citing delay and lack of maintainability as reasons for the decision.