Sakthi Construction India (P) Ltd. vs Commissioner (Appeals)

T.S. Sivagnanam, J.—The petitioner seeks for issuance of a writ of certiorari, to call for the records of the second respondent in Order-in-Original No. 72 of 2011 dated 14.10.2011 and culminating in order of the first respondent in order appeal CMB-CEX-000-APP-027-14 dated 24.3.2014 and quash the order dated 14.10.2011 of the second respondent culminating in the order dated 24.03.2014 of the first respondent passed therein.

The petitioner was aggrieved by the order passed by the second respondent dated 14.10.2011, by which the second respondent confirmed the payment of service tax and education cess and secondary and higher education cess and also demanded appropriate interest in terms of Section 75 of the Finance Act, 1994, as against which the petitioner preferred an appeal to the Commissioner of Central Excise (Appeals). On the date when the appeal was presented, it was admittedly beyond the period of limitation and beyond the condonable limit of the appellate authority. Challenging the same, the present writ petition has been filed.

At the very outset, it has to be pointed out that any person aggrieved by an order passed by the first respondent is entitled to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal under Section 86 of the Finance Act, 1994 within a period of three months from the date on which the order passed by the first respondent has been received. The order passed by the first respondent is dated 24.3.2014 and served on the petitioner and the writ petition has been filed on 26.6.2014, well within the period of three months. Therefore, this Court is of the view that liberty should be granted to the petitioner to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal and if such appeal is filed, taking note of the pendency of the writ petition, which was filed within the period of limitation of three months, the Customs, Excise and Service Tax Appellate Tribunal shall not reject the appeal on the ground of limitation. Accordingly, the writ petition is disposed of granting liberty to the petitioner to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal and if such appeal is filed within a period of thirty days from the date of receipt of a copy of this order, then the Tribunal shall consider the appeal in accordance with law, without rejecting the same on the ground of limitation, in the light of the fact that the writ petition was pending before this Court till date and the writ petition was filed well within the period of three months from the date on which the petitioner received the order passed by the first respondent dated 24.3.2014. Consequently, M.P. No. 1 of 2014 is closed. No Costs.