Point of Law: Assessment – Condonation of Delay in filing Appeal - Appellate authority is not empowered to condone the delay beyond the aggregate period of limitation - statutory appeal was barred by limitation, the High Court ought not to have exercised its writ jurisdiction under Article 226 of the Constitution of India to examine challenge to the order of assessment

JUDGMENT :

Ujjal Bhuyan, J.

By filing this petition under Article 226 of the Constitution of India, petitioner seeks quashing of order dated 27.02.2020 passed by respondent No.1 and further seeks a direction to respondent No.1 to decide the appeal filed by the petitioner on merit.

1.1. Be it stated that being aggrieved by the order-in-original dated 08.07.2019 passed by the Assistant Commissioner of Goods and Services Tax, Aurangabad Urban Division whereby demand of service tax to the extent of Rs.15,03,571.00 was confirmed along with levy of interest and penalty, petitioner preferred appeal before the Commissioner (Appeals), Central Goods and Services Tax (CGST) and Central Excise, Nashik i.e., respondent No.1. By the impugned order dated 27.02.2020, the application for condonation of delay in filing the appeal was rejected. Consequently, the related appeal was dismissed as being time barred without entering into the merits. It is this order which is under impugnment in the present proceeding.

2. We have heard Mr. Banhatti, learned counsel for the petitioner and Mr. Mishra, learned counsel for the respondents.

3. Facts lie within a narrow compass in as much as we are not called upon to enter into the merit of the claim of the petitioner.

4. Petitioner is a private limited company engaged in the business of import, manufacturing, assembling and sale of motor vehicles and motor parts. It may be mentioned that petitioner is the successor company formed pursuant to the scheme of amalgamation between Skoda Auto India Private Limited, Volkswagen Group Sales India Private Limited and Volkswagen India Private Limited which was sanctioned by the National Company Law Tribunal, Mumbai Bench.

5. On 08.04.2019, Assistant Commissioner of Goods and Services Tax, Aurangabad Urban Division issued notice to the petitioner to show cause-cum-demand alleging that there was short payment of service tax by the petitioner by not including the amount of TDS and the amount of R&D cess in payment of royalty which amount was quantified at Rs.15,03,571.00 for the period from April, 2016 to March, 2017. Petitioner was also called upon to show cause as to why interest and penalty should not be levied.

6. Petitioner filed its reply to the show cause notice on 14.05.2019 denying the allegations made.

7. Following the above, a personal hearing was held on 11.06.2019 in the office of the Assistant Commissioner.

8. Assistant Commissioner, being the adjudicating authority, thereafter passed the order-in-original dated 08.07.2019 confirming service tax demand of Rs.15,03,571.00, charged interest thereon under section 75 of the Finance Act, 1994 besides imposing penalties under sections 76 and 77 of the Finance Act, 1994.

9. It is stated that the order-in-original was dispatched by the office of the Assistant Commissioner to the petitioner on 29.08.2019 by speed post. It was received by the petitioner on 30.08.2019.

10. According to the petitioner, after receipt of the order-in-original, copy of the same was handed over to the Assistant Manager (Taxation), who was responsible for handling the matter. On and from 22.11.2019, the Assistant Manager (Taxation) who was in-charge of preparation and following up of appeal against the order-in-original ceased to be in the employment of the petitioner. In the course of handing over of charge of the office, there was a lapse in communication as to the last date for filing of appeal before respondent No.1.

11. Petitioner has stated that the appeal was required to be filed under section 35-F of the Central Excise Act, 1944 read with section 83 of the Finance Act, 1994. On 29.11.2019, petitioner deposited an amount of Rs.1,12,768.00 being 7.5% of the service tax demand of Rs.15,03,571.00 which is a pre-requirement for filing such appeal.

12. Having made the pre-deposit as above, petitioner dispatched its appeal against the order-in-original to respondent No.1 on 02.12.2019 by speed post which was received by respondent No.1 on 04.12.2019. L