TaxTMI 
TaxTMI 
2026 (1) TMI 790
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....olding Service Tax Registration No. AAACA3634PSD001. They are also holding PAN No. AAACA3634P for the purpose of income tax purpose. With the transition of Goods and Services Tax (GST) regime, the appellants are also holding GSTIN No. 27AAACA3634P2ZG. Since the name of the appellants have changed to the present one i.e., M/s One Vibgyor Limited from M/s Rosoft Limited, even though the address of the registered office/principal place of business remained the same, the relevant GSTIN No. 27AAACA3634P1ZH had become inactive. 2.3 During the course of verification of ST-3 Return data filed by the appellants with the data regarding declared turnover in Income Tax Return (ITR)/Tax Deducted at Source (TDS) through 26AS for the year 2013-14 (October, 2013 to March, 2014), the department had come to a conclusion that the ST-3 return indicated 'Nil' taxable value of services, whereas the ITR indicate the total value of services as Rs.25,11,236/-. Thus, the department had concluded that the appellants had not declared the turnover of services to the above extent and that the applicable service tax of Rs.3,10,389/- at the rate of 12.36% had not been paid by the appellants. 2.4 The Departm....
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.... tax is difference of income reported in the Income Tax return filed by them vis a vis service tax return filed by them. From the AIO it is ascertained that the noticee was engaged in providing 'Information Technology Software Services'. The said service is taxable service under section 65(105)(zzzze). However, in absence of noticee's reply to SCN or not submitting any defence in the matter with regards to the difference in the turnover as declared in the ITR returns/ TDS vis-à-vis ST-3 returns, I have an opinion that the turnover of Rs.25,11,236/- pertains to taxable service provided by the noticee during the said period. Further, despite giving enough opportunities to noticee for submitting his defence, noticee did not respond, so it appears settled that the noticee has accepted all the allegations mentioned in the SCN and has nothing to add or submit in his defence. xxx xxx xxx xxx 17. Based on the above discussions it can be concluded that the noticee has provided taxable services of Rs.25,11,236/- in the year 2013-14 and therefore liable to pay Service Tax. Accordingly, Service tax of Rs.3,10,389/- (@12.36%) on the taxable turnover/income of Rs.25,11,2....
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....tipulated under Section 35F of Central Excise Act, 1944.Further, appellant have filed the present appeal on 28.03.2023 against impugned order issued on 01.06.2021 which is not within prescribed time limit of 2 months in terms of Section 85(3A) of the Finance Act, 1994. There is a delay of 605 days (excluding Sixty days) in filing the appeal. 11. As per Section 85 of the Finance Act, 1994, the last date for filing Appeal in this case was 31.07.2021, whereas, the appellant has filed the appeal only on 28.03.2023, i.e., after a delay of 605 days (excluding Sixty days). Since appeal period for filing appeal is two months from the date of receipt of order, it is necessary to decide at the threshold itself whether the delay, of a period of 605 days in filing the appeal is condonable or not and whether the appeal is time barred in terms of the provisions of Section 85(3A) of the Finance Act, 1994. xxx xxx xxx xxx 15. In the instant case, the present appeal has been filed after the expiry of statutory time period of 2 months prescribed under Section 85(3A) of the Finance Act, 1994 at the material time. I find that a dela of up to one month is condonable by Commis....
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....the legal provision for filing an appeal before the Commissioner (Appeal). The extract of these are quoted below: Central Excise Act, 1944 Service of decisions, orders, summons, etc. "37C. (1) Any decision or order passed or any summons or notices issued under this Act or the rules made thereunder, shall be served,- (a) by tendering the decision, order, summons or notice, or sending it by registered post with acknowledgement due or by speed post with proof of delivery or by courier approved by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), to the person for whom it is intended or his authorised agent, if any; (b) if the decision, order, summons or notice cannot be served in the manner provided in clause (a), by affixing a copy thereof to some conspicuous part of the factory or warehouse or other place of business or usual place of residence of the person for whom such decision, order, summons or notice, as the case may be, is intended; (c) if the decision, order, summons or notice cannot be served in the manner provided in clauses (a) and (b), by affixing a copy th....
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....erest or penalty under this Chapter: Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. (4) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty: Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making order under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 (1 of 1944)." 6.2 In order to address the disputed issue at paragraph 5(i) above....
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....filing an appeal before the Commissioner (Appeals). 8.1 From the details obtained from the jurisdictional CGST & Central Excise authorities vide letter dated 29.08.2025 and submitted by the learned AR, it is not in dispute that the appellants had not received the SCN dated 18.04.2019, as the department had admitted that the same has been returned back to them as being 'Unclaimed'. Further, in terms of Section 37C of the Act of 1944 made applicable to service tax matters vide Section 83 of the Finance Act, 1994, the mode of despatch of the SCN, Order in this case having been done by registered post/speed post, the proof of delivery can be ascertained from 'acknowledgement due' indicating the receipt by the appellant or the 'proof of speed post letter delivered' as reflected in the records of the Department of Posts. There is no such document produced by the department to establish the proof of delivery of the Order-in-Original dated 28.05.2021. By inference that SCN dated 18.04.2019 was returned and since the Order-in-Original is stated to have not been returned by Postal authorities and hence, the department claimed that such order of the Original authority would have been deliv....
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....Bottling Company (P) Limited (supra), as in that case a copy of the order was sent by registered post, whereas in the present case, the order is said to have been sent by speed post and there is no evidence of tendering the decision to the assessee. 6. In these circumstances, in our opinion the decision of the CESTAT that the requirements of Section 37C have been complied with cannot be accepted. As per Section 37C(1)(a) of the Central Excise Act, 1944, it was obligatory on the part of the Revenue, either to tender a copy of the decision to the assessee or to sent it by registered post with acknowledgment due to the assessee or its authorized agent. In the present case, neither of the above have been complied with by the Revenue. Accordingly, the contention of the assessee that a copy of the order of Commissioner of Central Excise (Appeals) was received for the first time on 26th February 2010 would have to be accepted. Consequently, the decision of the CESTAT that the appeal filed by the assessee was time-barred cannot be sustained." 8.3 I have also gone through the judgement of the Hon'ble Supreme Court in the case of Singh Enterprises Vs. Commissioner of Central Exci....
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....ng the appeal within the aforesaid period of two months. In the present case, the order of the original authority has been sent to M/s Rosoft Limited having GSTIN 27AAACA3634P1ZH which had become inactive and the new entity i.e., M/s One Vibgyor Limited having GSTIN 27AAACA3634P2ZG was only active. It is also noted that the Directors of the appellants company presently are S/Shri Dyuti Biswas, Sumit Phool Chand Sharma and Ms. Renee Mallick and the earlier nine directors of the company who had served in the past have already resigned on various dates. Therefore, the reasons claimed by the appellants such as recreation of service tax login details from the departmental portal, making arrangements for pre-deposit in view of the change in the name/constitution of the appellant company, for the delay of five days caused if filing appeal, in my opinion qualify for being 'sufficient cause' for condoning the delay. This is also justifiable for one another reason, that the appellants was never given a change to explain their cause either in the form of a reply to the SCN or a personal hearing to explain their case before the Original Authority, by following the 'principles of Natural Justic....
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....e. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should appraise the party determinatively the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the "Magna Carta". The classic exposition of Sir Edward Coke of natural justice requires to "vocate, interrogate and adjudicate". In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414], the principle was thus stated: "Even God did not pass a sentence upon Adam, before he was called upon to make his defence. "Adam" says God, "where a....
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....se of what is right and wrong'. While, however, deciding Hookings v. Smethwick Local Board of Health (1890(24) QBD 712), Lord Fasher, M.R. instead of using the definition given earlier by him in Vionet's case (supra) chose to define natural justice as 'fundamental justice'. In Ridge v. Baldwin (1963(1) WB 569, 578), Harman LJ, in the Court of Appeal countered natural justice with 'fair-play in action' a phrase favoured by Bhagawati, J. in Maneka Gandhi v. Union of India (1978 (2) SCR 621). In re R.N. (An Infant) (1967(2) B617, 530), Lord Parker, CJ, preferred to describe natural justice as 'a duty to act fairly'. In fairmount Investments Ltd. v. Secretary to State for Environment (1976 WLR 1255) Lord Russell of Willowan somewhat picturesquely described natural justice as 'a fair crack of the whip' while Geoffrey Lane, LJ. In Regina v. Secretary of State for Home Affairs Ex Parte Hosenball (1977 (1) WLR 766) preferred the homely phrase 'common fairness'. 17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as repres....
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....ng to explain their case. This is apparent from the findings given by the authorities below in adjudication of the case, as given in paragraphs 4.1 and 4.2 above. 9.2 In this regard, I find that Central Board of Indirect Taxes and Customs (CBIC) had considered the appropriate action to be taken by the filed formations, in similar situation as the one referred in this case and issued instructions dated 26.10.2021, which is extracted and given below: "Government of India Ministry of Finance (Department of Revenue) Central Board of Indirect Taxes & Customs *** New Delhi dated 26.10.2021 Subject : Indiscreet Show Cause Notices (SCNs) issued by Service Tax Authorities - Reg. Representations have been received from various trade bodies and associations regarding instances of indiscriminate issuance of demand notices by the field formations on the basis of ITR-TDS data received from Income Tax Department. 2. In this regard, the undersigned is directed to inform that CBIC vide instructions dated 1-4-2021 and 23-4-2021 issued vide F.No. 137/472020-ST, has directed the field formations that while analysing IT....
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.... of the said Order is extracted and given below: "11. In fact, the burden was cast by the Commissioner (Appeals) upon the appellant to prove that the order was not received by the appellant since it had been despatched from the Office of the Assistant Commissioner, whereas, it was for the Commissioner (Appeals) to ascertain the date on which the order that was despatched on January 18, 2019 was actually served upon the appellant in order to controvert the submission of the appellant that the order was received only on March 27, 2019. 12. In this view of the matter, when the Department failed to provide any evidence to controvert the submission of the appellant that the order was actually received by the appellant only on March 27, 2019, the appeal shall be deemed to have been filed within the stipulated period of sixty days as it was filed on May 27, 2019. The Order of the Commissioner (Appeals) rejecting the appeal on the ground of limitation cannot, therefore, be sustained." 9.4 Further, I also find that the learned Counsel for the appellants had submitted that in terms of the Ledger Accounts maintained by M/s Rosoft Limited for the Financial Year 2013-2014, ....