9911796707
TMI Blog2013 (11) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... tax, since it provides services as a Customs House Agent (CHA). A circular was issued by the Central Board of Excise and Customs (C.B.E. & C. for short), on the basis of which, it was required to pay Service Tax on Agency charges or Attendance charges. The petitioner and all other CHAs; all throughout the country, had been contesting on various grounds for exclusion of reimbursable expenses incurred by them on behalf of their clients for the period from 1st October, 2003 to 31st March, 2008. 2.2 A show-cause notice was issued, proposing to recover a sum of Rs. 4,10,739/- as Service Tax on the ground that various reimbursable expenses incurred for the aforementioned period were not included in the taxable value by the petitioner. Reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing reliefs : (A) That Your Lordships may be pleased to issue a Writ of Certiorari or any other appropriate writ, direction or order, quashing and setting aside Order No. A/1719/WZB/AHD/2012, S/2578/WZB/AHD/ 2012 and M/2429/WZB/AHD/2012, dated 4-12-2012 (Annexure C) thereby directing the Appellate Tribunal, Ahmedabad (i.e. CESTAT) to hear and decide Stay Application No. ST/S/934/2012 and Appeal No. ST/368/2012 on merits; (B) That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the CESTAT, Ahmedabad to condone delay in filing Appeal No. ST/368/2012 for hearing the Stay Application and Appeal on merits; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay in making pre-deposit cause any prejudice to the revenue and therefore, the appeal which has been dismissed for want of compliance of pre-deposit, requires to be restored. In the words of this Court : 10. Applying the aforesaid ratio to the facts of the case, it is apparent that Commissioner (Appeals) committed an error in law when he came to the conclusion that he could not restore that appeal and the only remedy was by way of preferring deposit as directed, the appellant does not stand that, by mere default in making his right to have his case adjudicated. Nor does such a delay in making pre-deposit cause any prejudice to the revenue, in absence of any stay operating in favour of the petitioner. It cannot be lost sight of that ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned if it is looked at, it was noted by the Tribunal that the appellant being a CHA firm, it received order-in-appeal on 17th January, 2012, but, did not prefer appeal within the time prescribed. The Tribunal did not believe the reasons put forth by the appellant-petitioner of his having a bona fide belief that the receipt of the order of the Commissioner (Appeals) had not arrived for a long time on the ground that in the application for condonation of delay itself, it was specified that such an order was received on 17th January, 2012. The certificate produce of Ahmedabad Customs House Agents Association did not instill any confidence in the Tribunal because according to it, there was no proof to indicate that the petitioner continued as a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained. Substantive cause of the litigant is far more vital to be considered; when pitted against technicality and the procedural delays. As fundamental issue challenged by the other CHAs is at large before the Tribunal, his case on substantive ground should be permitted to be proceeded with rather than defeating him on technical ground.
9. Resultantly, this petition stands allowed. Order of the Tribunal dated 4th December, 2012 is hereby quashed with consequential reliefs of restoration of Appeal and stay applications. Notice is discharged with no order as to costs.
10. Tribunal shall on affording opportunity of personal hearing to both the sides shall determine the substantive issues. X X X X Extracts X X X X X X X X Extracts X X X X
|
