2026 (6) TMI 450

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....e 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. Further as per Rule 8 of Rule- (1) An appeal under Section 85 of the Act to the [Commissioner] of Central Excise (Appeals) shall be in Form ST-4. (2) The appeal shall be filed in duplicate and shall be accompanied by a copy of order appealed against. Section 35F of the Central Excise Act 1944 states that certain percentage of duty demanded or penalty imposed has to be deposited before filing appeal. The relevant portion of the same is given as under- The Tribunal or the Commissioner (Appeals), as the case may be, shall not entertain any appeal- (i) under sub-section (1) of Section 35, unless the appellant has deposited seven and a half per cent of the duty, in case where duty or duty and penalty are in dispute, or penalty, where such penalty is in dispute, in pursuance of a decision or an order passed by an officer of Central Excise lower in ran....

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....e the Commissioner (Appeals), subject to a ceiling of Rs. 10 crores. This requirement, effective from 06.08.2014, as amended by the Finance (No. 2) Act, 2014, is a statutory condition for the appeal to be maintainable. Since the appeal has been filed after effective date of 06.08.2024 hence its non-compliance renders the appeal liable for rejection, as the Appellate Authority is statutorily barred from entertaining it. 6.0 In view of the foregoing, I reject the appeal on the ground of being time barred. Also the appeal is not maintainable due to non-compliance of section 35F of the Central Excise Act 1944. Accordingly, the appeal is disposed of in above terms." 2.1 Appellant having GSTIN No.09FSHPS2976D2Z6 are engaged in providing taxable services under the provisions of CGST Act, 2017. They were not registered under the Finance Act, 1994 for providing taxable services prior to switchover from CGST to GST on 01.07.2017. 2.2 An information was received from the Income Tax showing huge receipts towards service in respect PAN -FSHPS2976D. On the basis of such information, revenue authorities were of the view that the said PAN has short paid service tax as detailed in ta....

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....enty-four thousand eight hundred twelve only) upon the party under Section 78 of the Finance Act, 1994. The party shall be eligible for reduced penalty specified in second and third proviso to Section 78 of the Act, subject to fulfillment of conditions specified therein as mentioned in para 6.5 above. (iv) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(1) (c) of the Finance Act, 1994 for contravention of provisions of Rule 5A (2) of the Service Tax Rules, 1994. (v) I impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(1) (a) of the Finance Act, 1994 for contravention of section 69 of the Act read with Rule 4 of the Service Tax Rules, 1994. (vi) I also impose a penalty of Rs. 10,000/- (Rupees Ten Thousand Only), upon the party under Section 77(2) of the Finance Act, 1994 for contravention of provisions of Section 70 of Act read with Rule 7 of the Rules." 2.6 Aggrieved appellant have filed appeal before Commissioner (Appeals) which has been dismissed as per the impugned order referred in para 1 above. 2.7 Aggrieved appellant have filed this appeal. 3.1 I have h....

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....ized Representative appearing for the revenue is directed to call for the dispatch records of Order-in-Original and show cause notice from the concern jurisdictional office. 3.0 Taking note of the above, matter is adjourned to 13.04.2026." On 13.04.2026 following observations were made:- "Documents called for as per order sheet dated 18.03.2026 have not been received, though the details along with the order sheet dated 18.03.2026 were communicated by the AR Office on 24.03.2026 to the concern jurisdictional office. 2.0 Awaiting to the said response, matter is adjourned to 04.05.2026. However, it is made clear, if the documents are not provided before the next date of hearing, adverse inference will be drawn against the jurisdictional revenue authorities after hearing the appellant. 3.0 Learned Authorized Representative appearing for the revenue is directed to forward a copy of this order sheet to the concern jurisdictional office. 4.0 Taking note of the above, matter is adjourned to 04.05.2026." 3.4 In response of above directions Learned Authorized Representative while reiterating the findings recorded in the orders of the lower a....

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....ken contrary view without even a proper verification though the impugned order records that first appellate authority has called for the proof of dispatch and delivery of order in original from the jurisdictional authorities, the presumption of dispatch and delivery was made in absence of any response from the department. Thus this order cannot be said to be in accordance with the known principle of law and needs to be set aside. 4.5 I also find that even the show cause notice has been issued without any verification. Even the documents from Income Tax has not been looked into. If only 26AS was looked into, the address mentioned on form 26AS would have at least given the correct address of the appellant. Form 26AS of the appellant is reproduced below:-   4.6 Further, the appellant has also enclosed their ST-3 return filed with the jurisdictional authorities as per which they have paid service tax in respect of services provided during the said period. They have also provided the reconciliation of their turnover with as per their ST-3 return, GST Returns and 26AS as indicated in the tables below: 4.7 From perusal of the above, I observe that there is no service tax dem....

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.....10.2023 which has not been received back from the postal department till date. Therefore, it appears that the said OIO has been delivered to the concerned party. Encl: As above. Digitally signed by Anil Kumar Mahaseth Date: 30-04-2026 17:47:43 Assistant Commissioner (Review) CGST & Central Excise Commissionerate Varanasi वित्त मंत्रालय MINISTRY OF FINANCE साचलेच पावती कार्यालय : सहायक आयुक्त, केन्द्रीय वस्तु एवं सेवा कर तथा केन्द्रीय उत्पाद शुल्क प्रभाग, मिर्जापुर, चन्द्रदीपा, जनपद - मिर्जापुर (उ.प्र....

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....ह प्रतीत होता है कि पत्र संबंधित पक्षकार को वितरित हो चुका है। उक्त के संबंध में डाक रसीद की प्रति संलग्न कर प्रेषित की जा रही है। अतः यह सूचना आपके संज्ञानार्थ प्रेषित है। भवदीय, Mlandy 30/04/26 f अधीक्षक (Adjudication ) केंद्रीय वस्तु एवं सेवा कर, मिर्जà....