2021 (10) TMI 193

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....dated 10.03.2021 for the second respondent with direction to the first respondent to re-adjudicate the SCN No.9/2017 (S.TAX) dated 27.07.2017 after receiving reply and providing opportunity of hearing to the petitioner. 2.The petitioner is an assessee under the first respondent and in respect of service tax, a show cause notice was issued on 27.07.2017, on the ground that there has been non-payment of service tax to the tune of Rs. 2,98,973/- on legal charges paid to advocates for the period from 2012-2013 to 2016 -2017, short payment of service tax on business auxiliary services during the period from 2012-2013 to 2016-2017, non-payment of security service under reverse charge mechanism for the period from 2012-2013 to 2016-2017, non-paym....

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....have been sent, instead of to the Appellate Authority, to the Original Authority itself. Subsequently, no further movement has been taken place, and after a long time, the petitioner had came to know that the appeal filed by the petitioner had been before the Original Authority, which is the wrong Forum, therefore, in this regard, though some communications had been given, or request had been made to the Appellate Authority, since the same was not considered, the petitioner had decided to prepare a fresh appeal and file it before the Appellate Authority, accordingly, the appeal has been filed before the Appellate Authority with the delay of 815 days. 5.The Appellate Authority having taken the appeal filed by the petitioner, has decided to ....

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....he assessee side, and therefore, if at all, the said appeal has been filed in a wrong Forum, the same can very well be returned to the assessee, enabling the assessee to file an appeal before the Appellete Authority/proper Forum. However, the said issue had come to the light only long after and when they prepared a fresh appeal and file it before the Appellate Authority, there has been a delay of 815 days, therefore, in order to condone such a delay, when a request was made, the Appellate Authority having considered the same, rejected that on the ground of no power/ jurisdiction to condone the delay beyond the period as contemplated under Section 85(3) of the Finance Act, 1984 and on that sole ground, the petitioner's appeal since has b....

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....accepted, therefore, the Appellate Authority has rightly rejected the same. 8.I have considered the rival submissions made by the learned counsel appearing for the petitioner and the learned Standing Counsel appearing for the respondents and perused the materials placed before this Court. 9.In this case, admittedly, the order in original was passed on 30.08.2018, of course, after giving due opportunity to the petitioner, which the petitioner cannot deny. On receipt of the order in original on 04.09.2018, prerequisite deposit of 7.5% of demanded tax was paid by the petitioner on 20.09.2018, that is, within 15 days, based on which, it is claimed by the petitioner that, the appeal papers have been prepared and sent, instead of Appellate Auth....