TaxTMI 
TaxTMI 
2019 (7) TMI 1745
X X X X Extracts X X X X
X X X X Extracts X X X X
...., Learned Counsel appearing for the writ petitioner; of Learned Assistant Solicitor General of India, appearing for the 1st respondent, of Sri Suresh Kumar Routhu, Learned Standing Counsel appearing for the respondents 2 to 4, and of Sri K. Ramanna Dora, Learned Counsel appearing for the 5th respondent. We have perused the material record. 3. The introductory facts are as follows :- "The petitioner is a partnership firm engaged in the business of supply of tangible goods and transport of goods by coastal shipping. The petitioner is registered with the service tax department. Upon verification of the accounts of the petitioner by the officers of the department for the period from 2011-12 to 2014-15, it was said to have been observed that the petitioner has not paid - (1) service tax on business auxiliary services, provided to the vessels on behalf of the shipping agent/trader like pumping charges, surveyor charges, filing of shipping bills, documentation etcetera; (2) service tax on transport of goods in a vessel (barges) charged and collected on 100 per cent value of invoices issued for the period July, 2014 - March, 2015; (3) service tax on supplies like water, wh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on, Learned Counsel for the petitioner contended as follows : In view of the detailed objections filed to the audit letter, the 3rd respondent ought to have considered the same before passing the impugned order-in-original. The objections filed indicate that the petitioner has got a fair chance of success. Had the objections been considered, the 3rd respondent would not have passed the order-in-original. Though objections are filed to the audit letter, in the said impugned order, it was strangely observed that the assessee has, neither at the time of audit nor at the time of personal hearing, made any representation. The said observation is contrary to facts. However, it is true that the petitioner did not file objections to the show cause notice as the petitioner has already filed objections to the audit letter and was under the bona fide belief that the said objections would be considered. The petitioner was under the bona fide belief that the activities do not amount to rendition of service. Show cause notice, dated 6-12-2016, for the period from 2011-12 to 2014-15 was issued invoking extended period of limitation on the ground of non-declaration, in the ST-3 returns, o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f law while refraining from invoking Section 76 of the said Act. Admittedly, no objections are filed to the show cause notice and no cause was shown by a representation for not confirming the demand in the show cause notice. The taxes, interest and penalty are duly determined after following the principles of natural justice. The petitioner has no case on merits as being sought to be contended before this Court in view of the legal position enunciated in Singh Enterprises v. Commissioner of C.Ex. Jamshedpur [2010 (258) E.L.T. 186 (Jhar.)] and the decision in ITC Ltd., [1998 (101) E.L.T. 9 (S.C.)] and as the appellate authority has no power to condone the delay beyond period of thirty days on expiry of two months period for filing statutory appeal. The decisions in 'The Greater Visakhapatnam Municipal Corporation v. The Customs, Excise and Service Tax Appellate Tribunal, Bangalore, CCE, Mumbai v. Punjab Fibres Ltd., [2008 (223) E.L.T. 337 (S.C.)] and M/s. Singh Enterprises v. CCE Jamshedpur [supra], and P. Mody v. Commissioner [2015 (320) E.L.T. A271 (S.C.)]' lend support to the contentions of the Revenue. Since the demand amounts have become arrears, the recovery notice was rightly....
X X X X Extracts X X X X
X X X X Extracts X X X X
....A.P.)] wherein on a reference made to the Full Bench, the Full Bench answered the following question - 'whether the decisions of this Court in M/s. Resolute Electronics Pvt. Ltd. v. Union of India, [2015 (3) ALD 610 (DB) : 2015 (319) E.L.T. 51 (A.P.)] and Star Enterprises v. Joint Commissioner, Guntur, [2016 (41) S.T.R. 20 (A.P.)], require reconsideration.' It was noted that by the said decisions, a Division Bench of that Court had held that a writ petition under Article 226 of the Constitution would not lie against an Order-in-Original passed under the Central Excise Act, 1944 (for brevity, 'the Act of 1944'), once the statutory remedy of appeal against the said order stood foreclosed by the law of limitation. The Full Bench also noted that in the cases on hand of the Full Bench, Electronics Corporation of India Limited, the writ petitioner, was visited with two Orders-in-Original dated 21-10-2014 passed by the Assistant Commissioner of Customs and Central Excise, Hyderabad, holding it liable to pay interest under Section 11AA of the Act of 1944. The Full Bench found that in Panoli Intermediate (India) Pvt. Ltd. v. Union of India and Others [MANU/GJ/0371/2015 = 2015 (326) E.L.T. 5....
X X X X Extracts X X X X
X X X X Extracts X X X X
....onstitution was not considered therein and that it would always be open to the High Court to decline to exercise power under Article 226 of the Constitution in a given case after expiry of the permissible condonable period of 30 days, if the case did not fall in any of the exceptional categories where gross injustice is satisfactorily demonstrated. The Full Bench of the Gujarat High Court finally answered the reference as under : (1) Question No. 1 is answered in negative by observing that the limitation provided under Section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that - (A) the petition under Article 226 of the Constitution can be preferred for challenging ....