2010 (12) TMI 1039 - HC - Service Tax

Cooperative Society Appeal Dismissed for Delay in Filing

The High Court dismissed the appeal filed by a Cooperative Society under relevant sections of the Central Excise Act and the Finance Act. The appellant's ... Society received a recovery notice of demand - SCN was issued before assessment, but no reply was submitted by the appellant and thereafter, opportunities for personal hearing were also given to the appellant, but it did not avail the same and after assessment order was passed - appeal preferred was hopelessly barred by limitation and overall conduct of the appellant indicates that no case was made out so as to make interference and to condone delay, no ground to entertain the instant appeal and the same is hereby dismissed Issues:1. Appeal preferred under Section 35G of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994.2. Appellant's claim of being unaware of the order dated 21-12-2006.3. Allegation of the orders being bad in law due to lack of awareness.4. Dismissal of appeal by Commissioner, Central Excise (Appeals) and Tribunal.5. Appellant's plea for condonation of delay.6. Assessment proceedings indicating lack of response from the appellant.7. Appellant's failure to avail opportunities for personal hearing.8. Applicability of the decision in M/s. Singh Enterprises v. CCE, Jamshedpur [2008 (221) E.L.T. 163. (S.C.)].9. Tribunal's affirmation of Commissioner's order due to lack of clean hands by the appellant.10. Overall conduct of the appellant during the assessment proceedings.11. Justification for dismissing the appeal due to being hopelessly barred by limitation.Analysis:1. The appeal was filed under relevant sections of the Central Excise Act and the Finance Act against the order passed by the Customs, Excise and Service Tax Appellate Tribunal, affirming the order of the Commissioner, Central Excise (Appeals).2. The appellant, a Cooperative Society, claimed to be unaware of the order dated 21-12-2006, which led to a delay in filing the appeal. The appeal was rejected by the Commissioner as time-barred, and subsequently by the Tribunal.3. The appellant argued that the orders were legally flawed as they were not aware of the 2006 order, making it impossible to file the appeal in time. They contended that the delay should have been condoned due to the circumstances.4. The High Court, after hearing the appellant's counsel, found no grounds for interference in the appeal. The assessment order highlighted the appellant's lack of response despite multiple opportunities for hearings, leading to the demand for service tax, interest, and penalty.5. The Court noted that the appellant's conduct during the assessment proceedings, including not responding to notices and failing to attend personal hearings, indicated a lack of diligence. The delay in filing the appeal was deemed unjustifiable.6. Referring to the decision in M/s. Singh Enterprises v. CCE, the Court emphasized that the Appellate Authority had no power to extend the appeal period beyond the statutory limit.7. The Tribunal affirmed the Commissioner's decision, stating that the appellant did not present accurate facts for condonation of delay, and their overall conduct did not warrant interference or delay condonation.8. Considering the appellant's conduct and the circumstances, the Court concluded that the appeal was hopelessly time-barred, and there were no grounds to entertain it. Consequently, the appeal was dismissed.