Case Law Details
Capital Enterprises Through Dhiraj Jain Partner Rawal Market Vs Commissioner of Customs And Central Excise Manik Bagh Palace (Madhya Pradesh High Court)
Madhya Pradesh High Court held that appeal challenging the taxability of service, against the order of CESTAT, lies before Apex Court u/s 35L of the Finance Act, 1944 and not High Court.
Facts-
The appellant Capital Enterprises is a Partnership Firm working for Grasim Industries Limited (GIL) as a Clearing and Forwarding agent under C&F agreement dated 31.03.2000 continued up to 31.03.2004. As per terms and conditions of the aforesaid agreement, the appellant performed certain specified functions for the GIL for which an amount of Rs.2,35,37,228/- was received during the period 01.10.2001 to 30.09.2006.
A show cause notice was served to the appellant by the respondents Service Tax Department seeking an explanation about the short payment of service tax and non-filing of correct service tax returns. A demand of Rs. 15,78,465/- was raised along with penalty under Sections 76,77 and 78 of the Central Excise and Service Tax along with interest under Section 75 vide show cause notice dated 23.04.2007.
The Joint Commissioner affirmed the recovery of said service tax. Both Commissioner (Appeals) and Tribunal dismissed the appeal.
After the expiry of approximately two years the appellant preferred a review petition seeking restoration of the appeal for rehearing on merits. Vide order dated 14.02.2017, the learned Tribunal has dismissed the review petition. Being aggrieved by the aforesaid order, the appellant preferred a writ petition 5712/2017 before this Court.
Conclusion-
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.
FULL TEXT OF THE JUDGMENT/ORDER OF MADHYA PRADESH HIGH COURT
The appellant has filed this appeal being aggrieved by orders dated 11.09.2015 (Annexure A-2) and 14.02.2017 (Annexure A-1) passed by the Customs Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi; whereby, the appeal, as well as review petition both, have been dismissed.
This appeal is barred by 545 days, hence an application under Section 5 of the Limitation Act seeking condonation of delay is filed.
The facts of the case in short are as under:-
1. The appellant Capital Enterprises is a Partnership Firm working for Grasim Industries Limited ( in short GIL) as a Clearing and Forwarding agent under C&F agreement dated 31.03.2000 continued up to 31.03.2004. As per terms and conditions of the aforesaid agreement, the appellant performed certain specified functions for the GIL for which an amount of Rs.2,35,37,228/- was received during the period 01.10.2001 to 30.09.2006.
2. A show cause notice was served to the appellant by the respondents Service Tax Department seeking an explanation about the short payment of service tax and non-filing of correct service tax returns. A demand of Rs. 15,78,465/- was raised along with penalty under Sections 76,77 and 78 of the Central Excise and Service Tax along with interest under Section 75 vide show cause notice dated 23.04.2007.
3. The petitioner submitted a reply to the aforesaid show cause notice on 23.05.2007 contending that the amount reimbursed by the GIL against the expenses cannot be included in a gross/value of commission/ remuneration; hence, no tax is payable by the appellant after deducting the amount of reimbursement of the expenses.
4. The Joint Commissioner vide order dated 29.08 .2008 affirmed the recovery of service tax to the tune of Rs.15,78,465/- and imposed the penalty of Rs. 15,78,465/- as well.
5. Being aggrieved by the aforesaid order the appellant preferred the first appeal before the Commissioner (Appeal), Central Excise which came to be dismissed vide order dated 28.01.2009. Thereafter the appellant preferred a second appeal before the Customs, Excise & Service Tax Appellate Tribunal, Delhi on the date of hearing, no one appeared on behalf of the appellant; hence, the Appellate Tribunal after perusing the record dismissed the appeal on merits vide order dated 11.09.2015.
6. After the expiry of approximately two years the appellant preferred a review petition seeking restoration of the appeal for rehearing on merits. Vide order dated 14.02.2017, the learned Tribunal has dismissed the review petition. Being aggrieved by the aforesaid order, the appellant preferred a writ petition 5712/2017 before this Court. Vide order dated 04.09.2017, the admission of the writ petition was declined with the liberty to file an excise appeal in accordance with the law.
7. Instead of filing an appeal within 180 days the appellant preferred a review petition No.1803/2018 on 01.12.2018 before this High Court i.e. approximately after more than one and half years. During pendency of that review petition, the appellant filed this Excise Appeal on 12.02.2019. The Division Bench dismissed the review petition on 15/03/20 19 due to the filing of this appeal. The office of this High Court has calculated the limitation from the date of the original order dated 11.09.2015 and treating this appeal barred by 545 days.
8. The appellant has filed an application for condonation of delay contending that due to wrong advice initially writ petition was filed but the same was withdrawn, thereafter the appellant was advised to approach the NCLT but finally correct opinion was given by a counsel at Delhi viz Sujata Balachandra advocate for filing a Central Excise Appeal, hence delay is not intentional but bonafide. Shri A S Garg learned senior counsel submits that the appellant has filed an additional affidavit justifying the delay by contending on ill advice efforts were made to file an appeal before the National Tax Tribunal but in view of the judgment passed in the case of Madras Bar Association Vs. Union of India. MCC.No.1803/2018 was filed seeking the recall of the order passed in W.P.No.5712/2017. Thereafter correct advice was given for filing Central Excise Appeal, hence in the interest of justice delay is liable to be condoned.
9. The respondent has opposed the aforesaid application by submitting that there is an inordinate delay in filing this appeal the same has not been properly explained; hence, the application is liable to be dismissed. Shri Prasanna Prasad, learned counsel appearing for the respondent further has raised the issue of maintainability of this Excise Appeal by submitting that since the appellant is challenging the taxability of the service; therefore, this appeal under Section 35 G of the Central Excise Act 1944 is not In view of Section 35 L of the Act of 1944, the appeal lies before the Apex Court; hence, even otherwise the appeal is not maintainable before this Court.
10. After going through the averments made in the application filed under Section 5 of the Limitation Act as well as an additional affidavit, we are of the considered opinion 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
11. 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.
In view of the aforesaid, this appeal is dismissed.
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