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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 ..... f Rs. 5,000/- on the company under Section 77 of the Act and imposed a penalty equivalent to the amount of service tax on the company under Section 78 of the Act for nonpayment of service tax by wilful misstatement and suppression of relevant facts from the knowledge of the Department with intent to evade payment of service tax. 3. The appeal filed by the Assessee before the Tribunal was barred by limitation and therefore, an application was filed by the Assessee dated 15.04.2017 to condone the delay of 1557 days in filing the appeal. In the application filed for condonation of delay, the Assessee stated that they could not attend the personal hearing before the Adjudicating Authority, as the communication for personal hearing was not received by them as their business was closed and they vacated the registered premises during May, 2012 itself. Thus, the Assessee pleaded ignorance of the date on which the personal hearing was fixed and subsequently, came to know that an order has been passed on 13.03.2017 based on a communication sent by the Deputy Commissioner of Service Tax with the Order-in-Original passed demanding the service tax. The Assessee said to have addressed the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "Whether dismissal of appeal by rejecting the application seeking condonation of delay in filing of appeal in the facts and circumstances of the case and in law could not be countenanced and appeal needs to be restored to the file of the CESTAT for decision afresh affording opportunity of hearing to the appellants to secure the ends of justice ?" 7. The Court, while admitting the appeal on the substantial question of law recorded the concession given by the learned counsel for the Assessee, based on instructions from her client, that in the event of delay being condoned, the Assessee will forego its claim for refund. This statement was placed on record. Even before us, learned counsel for the Assessee stands by that statement. 8. Heard Ms.Naveena and Mr.K.S.Ramasamy, learned Senior Standing Counsel for the Revenue. 9. Mr.K.S.Ramasamy raised a preliminary objection with regard to the maintainability of the appeal before this Court by contending that no question of law arises for consideration in this appeal. To buttress his submission, learned counsel referred to the decision of the Division Bench of the High Court of Kerala in the case of Mohd. Fariz V. Commissioner of Customs, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive and whether it would constitute "sufficient cause" ? If the Court is convinced to say so, then, the delay is required to be condoned. 13. In our view, the Assessee cannot be left remediless solely on the ground that he has been turned down at the very threshold, that is, at 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. This can be seen from paragraph 7 of the order. One more important factor, which has to be borne in mind, is that unlike in judicial proceedings, before the Tribunal, the appeals are entertained only if the mandatory pre-deposit is paid by the assessee, to prefer the appeal. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articular, that the Tribunal while dismissing the application filed for condonation of delay has also dismissed the appeal because the appeal is also numbered even at the time, when the condonation of delay application is numbered, unlike the proceedings before this Court. 17. In the light of the above reasons, we reject the preliminary objection raised by the learned counsel for the Revenue and hold that the appeal is maintainable. 18. Next we proceed to decide the substantial question of law, which has been framed for consideration. Undoubtedly, the reason given by the Assessee for not being able to present the appeal in time was found to be factually incorrect, because, the ex-employee was subsequently made as a Director of the Company. Therefore, if this fact alone is taken into consideration, the Court may be left with no option, but to affirm the order of the Tribunal. However, the peculiar facts and circumstances of the case precludes us from doing so. 19. The first reason being that after the Show Cause Notice was issued, the Assessee appeared before the authority and while raising objection to the proposal in the Show Cause Notice stated that already an amount of Rs. 32 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the services referred to in the said sub-clauses are service contracts simpliciter without any other element in them, such as for example, a service contract which is a commissioning and installation, or erection, commissioning and installation contract. Further, under Section 67, as has been pointed out above, the value of a taxable service is the gross amount charged by the service provider for such service rendered by him. This would unmistakably show that what is referred to in the charging provision is the taxation of service contracts simpliciter and not composite works contracts, such as are contained on the facts of the present cases. It will also be noticed that no attempt to remove the non-service elements from the composite works contracts has been made by any of the aforesaid sections by deducting from the gross value of the works contract the value of property in goods transferred in the execution of a works contract." 22. Learned counsel for the Assessee contended that the above legal position is fully in favour of the Assessee and therefore, there cannot be any service tax liability fastened on the Assessee. It is further submitted that though such being the legal p ..... 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