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2019 Supreme(AP) 211
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
M. SEETHARAMA MURTI, G. SHYAM PRASAD, JJ.
Bachina Srinivas – Appellant
Versus
Commr. of Cus., C. Ex. & S.T., Visakhapatnam-1 – Respondent
Central Excise Appeal No. 1 of 2019
Decided On : 04-07-2019
Advocate Appeared:
For the Appellant : K. Vijay Kumar
For the Respondents: Suresh Kumar Routhu, Standing Counsel
Headnote:
Central Excise Act, 1944 - Section 35G - Central Excise Appeal - A show cause notice, vide No. IV/5/91/2008 AE-1 was issued to the appellant by the Additional Commissioner of Central Excise & Service Tax, Visakhapatnam Commissionerate, requiring the appellant to show cause to the Additional Commissioner - An amount of Rs. 7,26,523/- (Rs. Seven lakhs twenty six thousand five hundred and twenty three only), being the Service Tax payable under Renting of Immovable Property Services provided by him during the period should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 3,60,347/- (rupees three lakhs sixty thousand three hundred and forty seven only) already paid by him as discussed above should not be appropriated towards the service tax demanded – Held, condonation of delay and affording an opportunity to the appellant to have the intended appeal decided on its merits by the CESTAT. Hence, we hold that the impugned order is liable to be set aside and that such a course subserves the ends of justice - The Central Excise Appeal is allowed and the order, passed in Application No. S.T./COD/30509/2017 in Appeal No. S.T./30882/2017 is set aside and the said application is allowed and the delay in filing Appeal No. S.T./30882/2017 is condoned with a direction to the CESTAT to now take up the appeal for hearing and disposal on its merits, as per the procedure established by law, however, uninfluenced by the observations, if any, made in this order – Petition allowed
JUDGMENT :
M. Seetharama Murti, J.
1. This Central Excise Appeal, under Section 35G of the Central Excise Act, 1944, is filed by the unsuccessful applicant/appellant assailing the order, dated 24-5-2018, passed in Application No. S.T./COD/30509/2017 in Appeal. No. S.T./30882/2017.
2. The facts, which lead to the filing of this appeal, are as follows:
A show cause notice, dated 16-7-2009 vide No. IV/5/91/2008 AE-1 was issued to the appellant by the Additional Commissioner of Central Excise & Service Tax, Visakhapatnam Commissionerate, requiring the appellant to show cause to the Additional Commissioner as to why-
(i) The services of renting of shopping complexes and other immovable properties as discussed above provided by him should not be classified as "Renting of Immovable Property Service" under Section 65(90a) read with Section 65A of the Chapter V of the Finance Act, 1994;
(ii) An amount of Rs. 7,26,523/- (Rs. Seven lakhs twenty six thousand five hundred and twenty three only), being the Service Tax payable under 'Renting of Immovable Property Services' provided by him during the period from 1-6-2007 to 30-6-2009 should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 3,60,347/- (rupees three lakhs sixty thousand three hundred and forty seven only) already paid by him as discussed above should not be appropriated towards the service tax demanded;
(iii) An amount of Rs. 14,531/- (Rs. fourteen thousand five hundred and thirty one only, being the Education Cess payable under 'Renting of Immovable Property Services' provided by him during the period from 1-6-2007 to 30-6-2009 should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 7,208/- (Rs. Seven thousand two hundred and eight only) already paid by him and discussed above should not be appropriated towards the service tax demanded;
(iv) An amount of Rs. 7,265/- (Rs. Seven thousand two hundred and sixty five only) being the Secondary and Higher Education Cess payable under 'Renting of Immovable Property Services' provided by him during the period from 1-6-2007 to 30-6-2009 should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 3,603/- (Rupees three thousand six hundred and three only) already paid by him as discussed above should not be appropriated towards the service tax demanded;
(v) Interest as applicable under the provisions of Section 75 of the Chapter V of the Finance Act, 1994, should not be demanded; and
(vi) Penalty should not be imposed on him under Section 76, Section 77 and Section 78 of the Chapter V of the Finance Act, 1994 for failure to pay service tax by suppressing the fact of providing of taxable service, failure to take registration within the time prescribed and failure to file periodical returns as discussed above. [Reproduced verbatim]
Thereafter, the adjudicating authority, by an order, dated 12-12-2012, in Original No. VIZ STX 001 ADC 001 12 confirmed the demand in the show cause notice to the extent indicated in the said order. Aggrieved of the orders of the adjudicating authority, the appellant herein filed appeal No. 69/2012(V-1) S.T. before the appellate authority - the Commissioner : Customs, Central Excise and Service Tax (Appeals), Visakhapatnam. The said authority dismissed the said appeal by an order, dated 9-12-2013. Thus, the order of the original adjudicating authority was upheld. Aggrieved of the said order of the appellate authority, the appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal [CESTAT] in Appeal No. 30882/2017. Since delay had occasioned in filing the said appeal, the appellant also filed Misc. Application No. 30509 of 2017 for condonation of 1164 days in filing the said appeal. On merits and by the order impugned, the CESTAT dismissed the said application for condonation of delay. As a s
