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2014 DIGILAW 382 (MAD)

Albert & Company v. Commissioner of Service Tax

2014-02-18

K.KALYANASUNDARAM, M.JAICHANDREN

body2014
JUDGMENT 1. Heard the learned counsel appearing for the appellant, as well as the learned counsel appearing on behalf of the respondents. 2. This Civil Miscellaneous appeal has been filed against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, dated 11.4.2013, in Appeal No.ST/MISC/744/12, ST/S/555/12 and ST 671/12. In the present Civil Miscellaneous Appeal, the following substantial questions of law have been raised for the consideration of this Court: "1) Whether the Appellate Tribunal is right in upholding the order of the Commissioner (Appeals) dated 7.8.2012, dismissing the appeal as time barred. 2) Whether the Appellate Tribunal ought to have entertained the appeal and set aside the order of the Commissioner (Appeals) in the interest of justice to offer opportunity to the Appellant to defend itself?" 3. The learned counsel appearing on behalf of the appellant had submitted that the order of the Appellate Tribunal, dated 11.4.2013, is erroneous and unsustainable in the eye of law. The Appellate Tribunal ought to have seen that it is a case of exparte adjudication, by the second respondent. It has been further stated that the first respondent ought to have condoned the delay in the filing of the appeal and the appeal should have been heard and decided, on merits and in accordance with law. As the order under challenge had been passed contrary to the principles of natural justice, the Appellate Tribunal ought to have condoned the delay in the filing of the appeal, instead of dismissing the same, as barred by limitation. 4. Per contra the learned counsel appearing on behalf of the respondents had submitted that it is a well settled position in law that the period of limitation prescribed for the hearing of the appeal, by the Appellate Tribunal, under Section 85(3) of the Finance Act, 1994, cannot be extended . The learned counsel had relied on the following decisions in support of his contentions: 1) Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and others (2008) 12 VST 542 (SC) 2) JMJ Constructions Vs. Assistant Commissioner of Central Excise, Salem and others, (2012) 56 VST 256 (Mad) 3) Earbis Engineering Co. Ltd. And another Vs. Deputy Commissioner of Sales Tax, Ballygunge Charge and another, (2012) 56 VS 258 (WBTT) 4. Gopinath & Sharma Vs. CESTAT, Chennai, 2013(32) S.T.R 172 (Mad.) 5. Gopinath & Sharma Vs. Assistant Commissioner of Central Excise, Salem and others, (2012) 56 VST 256 (Mad) 3) Earbis Engineering Co. Ltd. And another Vs. Deputy Commissioner of Sales Tax, Ballygunge Charge and another, (2012) 56 VS 258 (WBTT) 4. Gopinath & Sharma Vs. CESTAT, Chennai, 2013(32) S.T.R 172 (Mad.) 5. Gopinath & Sharma Vs. CESTAT, 2013 (32) STR J78 (S.C) 5. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, and on considering the decisions cited supra, we are of the view that the relief prayed for, by the appellant, in the present appeal, cannot be granted. In view of the decisions cited supra, it is clear that the Appellate Tribunal does not have the power or the authority to extend the period of limitation prescribed by the statute, for entertaining the appeal. Therefore, the contentions raised on behalf of the appellant, in the present appeal, cannot be accepted. As such, the present civil miscellaneous appeal is liable to fail. In such circumstances, we find it appropriate to dismiss the present appeal and accordingly it is dismissed. No costs.