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TMI Blog2018 (9) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... the stage of delay condonation petition. What is important to note from the impugned order is that while dismissing the application for condonation of delay, the Tribunal dismissed the appeal itself. Since the mandatory pre-deposit is paid, the appeal is numbered along with the application to condone the delay and this is precisely the reason why the Tribunal, while rejecting the condonation of delay application, has dismissed the appeal. Therefore, the order passed in the condonation delay petition, in effect, is an order passed in the appeal petition filed by the Assessee challenging the Order-in- Original dated 30.11.2012, and thus, it is a final order for all purposes, as against which, an appeal is maintainable under Section 130 of the Act. The substantial question of law, as framed for consideration, is answered in favour of the Assessee and against the Revenue - appeal allowed. - Civil Miscellaneous Appeal No.1305 of 2018 - - - Dated:- 14-8-2018 - Mr. T. S. Sivagnanam And Mrs. V. Bhavani Subbaroyan JJ. For the Appellant : Ms.Naveena For the Respondents : Mr.K.S.Ramasamy, Senior Standing Counsel JUDGMENT T.S.Sivagnanam, J. This appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in turn, sent a reply vide the letter dated 11.04.2017 stating that he received the impugned order during January, 2013 from the Superintendent of the Coimbatore III B Range in person, however, he failed to handover the same to the Assessee and furnished a copy of the order on 12.04.2017. Thus, the Assessee contended that the Order-in-Original was served on the ex-employee, who left the services after the business of the Assessee Company was closed down. 4. The Assessee further stated that there is no liability on their part to pay service tax and in spite of the same they have paid a sum of ₹ 41,36,422/-, which has been appropriated in the Order-in- Original to the tune of ₹ 32,18,458/-, which according to the Assessee, is refundable to them in terms of Section 73 of the Finance Act. Thus, the Assessee pleaded that no undue advantage was taken by the Assessee by delayed filing of the appeal. With these submissions, the Assessee requested the delay to be condoned. 5. The Tribunal, while considering the case, as pleaded by the Assessee, pointed out that though Mr.Sharma was formerly an employee of the company, later, he had been inducted as a Director of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that in terms of the said provision, appeal is against every order passed by the Tribunal in an appeal filed before it and the orders passed by the Tribunal are covered by Section 129B of the Act, which provides procedure for hearing and disposal of the appeals before the Tribunal. The Division Bench pointed out that the appeals referred to in Section 129B are valid appeals filed under Section 129A, which are either appeals filed within time or belated appeals entertained by the Tribunal after condoning the delay in terms of order passed under Sub- Section (5) of Section 129A. Thus, the Court held that the Tribunal dismissing the belated appeal on account of rejection of delay condonation petition cannot be treated an order passed under Section 129B in the appeal filed by the appellant. So much so, an order rejecting an appeal after dismissal of delay condonation petition is not an order in appeal, against which an appeal will be maintainable before the High Court under Section 130 of the Act. 10. Therefore, the question would be as to whether the present appeal is maintainable ? 11. Admittedly, in the instant case, the appeal was filed well beyond the period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 130 of the Act. The Division Bench in the said decision has held as follows : 9. The first reason is that in the second part of paragraph 38 of Rajkumar Shivhare v. Assistant Director, DoE [ (2010) 4 SCC 772 ] , the Supreme Court has carved out certain exceptional circumstances, in which, the writ petitions are maintainable. Therefore, the reading of Rajkumar Shivhare by the Division Bench in Metal Weld Electrodes v. CESTAT, Chennai, [2013 Writ L.R. 1041] may not be fully correct. The second reason as to why we cannot agree with the opinion expressed by the Division Bench in Metal Weld Electrodes 2013 Writ L.R. 1041 (paragraph 81) is that the question referred to the Bench has already been answered in paragraph 80. What is stated in paragraph 81, is an opinion, which appears to have been recorded as a corollary to what was recorded in paragraph 80. But, whatever is the answer provided in paragraph 80 to the reference alone can be taken as having arisen directly for consideration before the Division Bench. It is too well settled that a judgment is a precedent for what it lays down and not what follows out of it. 10. Therefore, we are of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the endorsement that the addressee left . Thus, there is record to show that the Assessee was not served with the notice fixing personal hearing. The erstwhile employee and later Director of the petitioner company has accepted that he received the Order-in-Original in person from the Superintendent of the Department during January 2013, but furnished the copy to the company on 12.04.2017. The Revenue has not placed any material to show that the closure of the business, as pleaded by the Assessee, was either factually incorrect or a false statement. The fact that the postal acknowledgement shows that the addressee is no longer carrying on business in the subject premises is clear indicator of the closure of business. Therefore, we are not inclined to accept the stand taken by the Assessee that they did not have effective opportunity to put forth their contentions before the Adjudicating Authority. 20. One more reason, which has convinced us to decide in favour of the Assessee is the Board's Circular 108/2/2009-S.T., dated 29.01.2009, which is wholly in favour of the Assessee pertaining to imposition of service tax on builders. We find that there is no proper adjudication on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inordinate delay in filing an appeal cannot be condoned by adopting a very liberal approach. However, it has been held that law of limitation has not been enacted with a view to defeat the rights of parties. It is, in fact, to bring a finality to the proceedings. Ordinarily, an appellant does not stand to benefit by lodging an appeal belatedly unless and until it is established that for certain mala fide reasons, the appeal was lodged well beyond the period of limitation. There is no such material placed before us warranting such a conclusion. In the case of Shoeline V. Commissioner of Service Tax, 2017 (6) G.S.T.L. 226 (SC), the Hon'ble Supreme Court, after taking into consideration various decisions including the decision in Rup Diamonds held that on the peculiar facts of the case, as the service tax levied for the period in question was paid by the appellant therein, allowed the appeal and held that equities would be balanced by not insisting on payment of penalty and interest. Thus, for the above reasons, we deem it appropriate that the appeal filed by the Assessee should be heard on merits. 25. In the result, the substantial question of law, as framed for con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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