Commissioner of Service Tax, Chennai v. E-Care India Private Limited
2017-04-10
R.SURESH KUMAR, RAJIV SHAKDHER
body2017
DigiLaw.ai
JUDGMENT : RAJIV SHAKDHER, J. 1. M.P.Nos.2 and 2 of 2014, are applications seeking condonation of delay in filing the accompanying appeals. 1.1. The period of delay involved, in each of the applications, is 699 days. 2. To be noted, the impugned order, which has been passed by the Customs, Excise and Service Tax Appellant Tribunal, South Zonal Bench, Chennai (in short, the Tribunal), is dated 07.01.2011. 2.1. The appeals with the applications for delay, were filed with the Registry of this Court, on 25.06.2013. 2.2. In the affidavits accompanying the applications, the following, rather cryptic and identical reasons, have been given, for seeking condonation of delay. For the sake of convenience, the same are extracted hereafter: “.... The Petitioner/Appellant states that the case papers were sent to the Department panel counsel and the panel counsel forwarded by E-mail draft CMA with Affidavit in the month of September 2012 for vetting and signature by the petitioner/appellant herein. As a number of Writ Petitions were filed challenging constitutional validity of levy imposed on various services such as Renting of Immovable Property, Transfer of Copyright and Port Services involving huge amount of revenue, the staff attached to the legal section of the Appellant's office were busy with preparing counters and making ready paper books connected with the said Writ Petitions. Therefore, the same could not be filed before the Appellate side within the limitation period. ....” 3. A perusal of the reasons set out above, would show, nothing has been stated, as to when the impugned order was received by the Department and as to when the case papers were handed over by the Department to its counsel. 3.1. The only assertion made in the application is that a draft of the appeal was forward by the counsel, via., e-mail to the Department, in the month of September, 2012, for the purpose of the same being vetted and for obtaining signatures of the Authorized Officer on the finalised version of the appeals. What has not been explained is, as to why, in this particular case, delay occurred between September, 2012 and 25.06.2013. 4. The only reason, which has been set out, which, quite frankly, is rather vague, is that, the Officials were involved in matters which pertained to challenge laid in some other matters, relating to levy of service tax on renting of immovable properties, transfer of copyright and port services. 5.
4. The only reason, which has been set out, which, quite frankly, is rather vague, is that, the Officials were involved in matters which pertained to challenge laid in some other matters, relating to levy of service tax on renting of immovable properties, transfer of copyright and port services. 5. According to us, the reasons, which the Department was required to supply were vis-a-vis delay in instituting the instant appeals. Clearly, those reasons have not been furnished via these applications. 6. Though, we are not required to examine the merits of the matter, we may indicate that the issue raised by the Department appears to be covered against them. 6.1. The Tribunal, by virtue of the impugned order has rejected the appeal of the Department, which assailed the order of the First Appellate Authority, whereby, refund was ordered in favour of the Assessee. 6.2. The Department's contention before both the Authorities below (i.e., the First Appellant Authority and the Tribunal) and apparently, before us, continues to be the same, which is, that since, the Assessee had not registered with them, it could not claim refund of unutilized cenvat credit. 6.3. The Tribunal has rejected the contention advanced by the Department, vis-a-vis the said issue. 6.4. We are informed that the Karnataka High Court in two judgments i.e., Portal India Wireless Solutions (P.) Ltd. V. Commissioner of Service Tax, 2011 (9) TMI 450 and Commissioner of Service Tax V. Tavant Technologies India Pvt. Ltd., 2016 (3) TMI 353, has taken a view in favour of the Assessee. 6.5. As a matter of fact, in a judgement delivered today, i.e., 10.04.2017, in C.M.A.No.860 of 2017, titled : Commissioner of Service Tax-III V. Customs, Excise and Service Tax Appellate Tribunal and M/s. SCIO inspire Consulting Service (India) Pvt. Ltd., we have taken the same view. 7. We may, make it clear, though, that the reasons for coming to the conclusion that the delay is not explained, is not pivoted on the merits of the matter. 7.1. We have adverted to the same, only to examine as to whether or not, an issue of like nature, was pending in this Court, and therefore, the appeals could, perhaps, be entertained, notwithstanding the huge delay. 7.2. As indicated above, the reasons furnished do not supply sufficient cause for condonation of delay. 7.3. Accordingly, the applications are dismissed. 8.
7.1. We have adverted to the same, only to examine as to whether or not, an issue of like nature, was pending in this Court, and therefore, the appeals could, perhaps, be entertained, notwithstanding the huge delay. 7.2. As indicated above, the reasons furnished do not supply sufficient cause for condonation of delay. 7.3. Accordingly, the applications are dismissed. 8. Consequently, the appeals, which are, at the SR stage, shall also stand dismissed. However, there shall be no order as to costs.