Court No. - 35
Case :- CENTRAL EXCISE APPEAL DEFECTIVE No. - 68 of 2018 Appellant :- M/S S.K. Financial Services Respondent :- Commissioner Counsel for Appellant :- Atul Gupta,Utkarsh Malviya Counsel for Respondent :- Krishna Agarawal
Hon'ble Bharati Sapru,J. Hon'ble Piyush Agrawal,J.
(Delivered by Hon'ble Piyush Agrawal, J.)
Civil Misc. Delay Condonation Application No. 1 of 2018
The present appeal has been filed under Section 35G of the Central Excise Act, 1944 against the order dated 27.7.2015, passed by Customs, Excise and Service Tax Appellate Tribunal, Allahabad along with delay condonation application, as there is delay of 932 days.
Heard Mr. Utkarsh Malviya, learned counsel for the appellantt and counsel for the Revenue.
It was argued by the counsel for the appellant that by means of show cause notice dated 5.8.2008, the dispute arises for payment of Service Tax along with interest and penalty under the category of 'Business Auxillery Service' falling under Section 65 (105) (zzb) of the Finance Act, 1994 for two periods i.e. from 23.8.2004 to 30.4.2006 and from 1.5.2006 to 20.12.2007 which was contested up to the Tribunal. The Tribunal by means of impugned order dated 27.7.2015 that deleted the demand and was pleased to hold that there was no liability for payment of Service Tax up to 1st May, 2006. The appellant has already discharged his liability of Service Tax along with interest for the period from 1.5.2006 onwards. In such circumstances, the appellant was under a bona fide belief that there is no liability of Service Tax and interest already paid and therefore, not assailed the impugned order which confirmed the levy of penalty. But, while passing the Order-in-Original on 31.8.2009, a penalty of Rs. 23,94,424/-, was imposed. He relied upon the judgement in Collector, Land Acquisition Anantnag and Another v. Mst. Katiji & Ors. reported at 1987 (28) ELT 185 (SC).
The counsel for the respondent had argued that the grounds taken for condoning the delay is not correct and is only afterthought, just to cover the intentional delay in filing the present appeal. It was argued that right from Order-in-Original where penalty was levied and the same was contested by the appellant up to the Tribunal which was also confirmed. So, the appellant was not correct in saying that there was no liability left for assailing the order of Tribunal.The appellant has failed to show sufficient cause for not preferring the appeal within the prescribed time of limitation for condoning the long delay of 932 days.
We have heard the counsel for the parties and perused the record. It is an admitted case between the parties that the applicant was liable for payment of Service Tax with effect from 1.5.2006 and admittedly, the same was paid beyond the prescribed period of limitation.
It is also not in dispute that the penalty was levied by Order-in-Original which was contested up to the Tribunal by the appellant and the same was confirmed by the impugned order.
For assailing the impugned order before the High Court the limitation is provided under Section 35G(2)(a), which reads as follows:-
"35G(2)(a) filed within one hundred and eighty days from the date on which the order appealed against is received by the Commissioner of Central Excise or the other penalty."
Further in case the parties aggrieved failed to approach the High Court within the prescribed period of limitation under section 35G(2)(a) then the Act prescribed under Section 35G(2A), which reads as under:-
"35G(2A) The High Court may admit an appeal after the expiry of the period of one hundred and eighty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period."
From perusal of the aforesaid Section it is very clear that the person aggrieved can approach the High Court within 180 days from the date the order is received and in the event the parties failed to approach the High Court within the time allowed then the High Court has been given power to condone the delay if it is satisfied that there was sufficient cause for not filing the appeal within the prescribed period of limitation.
The party in default i.e. not approaching the High Court within the period of limitation as provided under Section 35G(2)(a), is required to show sufficient cause for approaching the High Court beyond such period of limitation.
The appellant had contested the matter up to the Tribunal challenging the levy of Service Tax interest and penalty. So, there is no question of any bona-fide to justify that after payment of Service Tax alongwith interest the penalty was also waived. Such, a presumption is not acceptable in absence of any cogent material on record.
The appellant has tried to demonstrate that he was severely ill on account of excruciating pain in spinal cord and lower back and in support of such claim, has filed a prescription of Dr. Sanjli Lawaniya. On perusal of the alleged certification it shows that Dr. Sanjli Lawaniya was not orthopaedic but, is a general physician. It appears that the certificate has only been obtained to cover the intentional delay in not approaching the Court within the time prescribed.
Further, such a certificate and all other sympathetic grounds taken for condoning the delay is also not acceptable.
The Apex Court in the Case of Postmaster general vs. Living Media India Limited reported in 2012 (3) SCC page 563 has held that the reasonableness and acceptable explanation for delay and bona fide effort has to be shown only then the delay can be condoned.
The case relied upon by the appellant is also no help. The facts of the present case is clearly show a gross negligence and deliberate in action in not approaching the Court within the prescribed time for filing an appeal before this Court.
The appellant has failed to show sufficient cause for condoning such a huge delay of 932 days. Therefore, delay condonation application is rejected and the appeal is dismissed on this ground alone.
Order Date :- 28.2.2019 SY