TMI Blog2013 (4) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... tion obtained from the Commissioner of Service Tax it is seen that the Commissioner of Service Tax has clearly stated that "Appeal against the Order in Original No.96 of 2009 dated 16.12.2009 (filed on 12.03.2010) was not received in the Service Tax Commissionerate. As per the entry, when the appeal filed by the assessee against the Order in Original No.96 of 2009 dated 16.12.2009 was not received by the office of the Commissioner of Service Tax, the assessee cannot contend that appeal was filed before the wrong Forum and that would save the limitation. In the order passed in Order in Original dated 16.12.2009, appeal was filed before the Commissioner of Central Excise (Appeals) on 26.12.2011, acknowledged on 29.12.2011 beyond the period of three months plus discretionary period of three months. Tribunal rightly referred to the decision of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur [2007 (12) TMI 11 - SUPREME COURT OF INDIA] holding that a statutory authority is not vested with power to exercise any discretion beyond the period stipulated by law and that the appeal filed beyond the prescribed period of limitation is not maintainable as being barred by lim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith other Chartered Accountant Firms situated in other Cities and Towns in respect of the activities relating to their clients. After issuing show cause notice (11.09.2008), the Commissioner of Service Tax, Chennai passed an Order in Original No.96 of 2009 dated 16.12.2009 levying service tax of ₹ 6 ,43,310 /- and interest and also imposing a penalty of ₹ 6,43,310 /-. 3. Aggrieved by the order dated 16.12.2009 which was received by the assessee on 30.12.2009, the assessee filed an appeal in Form ST-4 before the office of the Commissioner of Service Tax, Chennai-35 on 12.03.2010. In terms of Section 85(3) of Finance Act, 1994 an appeal against the order of Lower Adjudicating Authority has to be filed before the Commissioner of Central Excise (Appeals). According to assessee , noticing the error of filing appeal before the wrong Forum, they immediately filed copies of appeal in Form ST-4 before the Commissioner of Central Excise (Appeals) along with their letter dated 26.12.2011 and the same was acknowledged on 29.12.2011. The First Appellate Authority - Commissioner of Central Excise (Appeals) observed that enquiries were made with the Commissioner of Service Tax and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory period of three months plus discretionary period of another three months under proviso to sub-section 3 of Section 85 of Finance Act and since the appeal was filed after the period of about two years, the First Appellate Authority has no power to condone the delay beyond the statutory period of three months. Learned counsel would submit that Tribunal has rightly held that Section 5 of Limitation Act is not applicable to the proceedings under Finance Act and no question of law is involved in this appeal. 7. We have considered the rival submissions and also the materials on record. 8. Assessee is a partnership firm of Chartered Accountants and are engaged in providing taxable service under the category of Chartered Accountant Services . During the course of audit conducted by the Internal Audit Group of Chennai Service Tax Commissionerate , it was ascertained that assessee provided taxable service to their clients by sub-contracting the work to their associates. The scrutiny of the records for the period from April 2003 to June 2006 revealed that assessee had discharged their service tax liability only on the service charges realised by them but had not paid the service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) along with their letter dated 26.12.2011 and the same was acknowledged by the office of the Commissioner of Central Excise (Appeals) on 29.12.2011. Case of assessee is that by mistake the appeal was filed before the wrong Forum and without calling for details from the assessee or affording opportunity of hearing, the Lower Appellate Authority in Appeal No.24 /2012 (MST) dated 16.02.2012 dismissed the appeal that the appeal was filed beyond the period of six months including the condonable period of three months. 11. In support of his contention that Form ST-4 appeal to be filed before the Commissioner of Central Excise (Appeals) was wrongly filed before the Commissioner of Service Tax, the learned counsel for assessee has drawn our attention to Page No.32 of typed set of papers (dated 29.1.2013) which contain round seal of the Office of Commissionerate of Service Tax dated 12.03.2010. By perusal of the said Form ST-4 (in Page No.32 of typed set), it is seen that in Column No.3 , the order under challenge is stated to be Order in Original No.101 /2009 dated 22.12.2009 . Column No.3 reads as follows:- Designation and address of the Officer passing the decision or ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er RTI Act, the learned counsel for assessee submitted that all the papers received by the Commissioner of Service Tax are not being accounted for in the IC Register and as such merely because there is no entry in the IC Register, the receipt of the appeal by the Commissioner of Service Tax cannot be disputed or denied with. Drawing our attention to the information obtained in respect of twenty eight documents, learned counsel submitted that out of 28 documents, only eleven documents were recorded in the IC Register and for thirteen documents, it is mentioned that the same were received; but not entered in the IC Register and for three documents, it is mentioned that files are not immediately traceable and therefore, merely because no entry was made in the IC Register, the receipt of the appeal in Form ST-4 by the Commissioner of Service Tax cannot be disputed or denied with. Upon perusal of the entries made in the IC Register maintained by the Service Tax Commissionerate , it is seen that the papers received were entered as received in the regular course of official work. of course some of them were not entered in the IC Register. Insofar as the appeal said to have been filed by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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