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2016 (10) TMI 461 - MADRAS HIGH COURT

2016 (10) TMI 461 - MADRAS HIGH COURT - TMI - Cenvat Credit - eligible input services - Delay in filing appeal before Commissioner (appeals) - Maintainability of writ petition - Held that:- the service rendered by AHPL to the petitioner in the capacity of full-fledged Operator of the Hotel and arranging catering, rooms and thereby promoting hospitality service of the Five Star Hotel comparable standards. Secondly, service rendered by AHPL cannot be allowed as eligible input service for the petit .....

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hin the period of limitation. Admittedly, the appeal was filed beyond the condonable limit. - When they filed the previous Writ Petition, merits of the petition was canvassed, therefore, once over again the petitioner cannot be allowed to raise the same grounds and the petitioner is estopped from doing so. - Writ petition dismissed - Decided against the assessee. - W. P. No. 26310 of 2016, W. M. P. No. 22567 & 22578 of 2016 - Dated:- 30-9-2016 - T. S. Sivagnanam, J. For the Petitioner : .....

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nvat Credit availed by the petitioner and demanded the same under Rule 14 of the Cenvat Credit Rules, read with Section 73(1) of the Finance Act, 1994, apart from demanding interest and imposing penalty. 3. Against the order-in-original, dated 29.10.2010, the petitioner was entitled to file an appeal before the Commissioner (Appeals), Chennai, however, the petitioner did not file the appeal within the period of limitation as stipulated under Section 85 of the Finance Act and there was a delay of .....

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ls). However, the petitioner did not take any steps to challenge the said order of the Commissioner (Appeals), by exhausting the remedy available under the Act, which provided for a further appeal to the CESTAT. After waiting for about one year, the Department issued a recovery notice, dated 08.12.2015, and the demand was not complied with. This was followed by another notice dated 08.01.2016. Thus, effectively, the petitioner had been given one full year, after the order passed by the Appellate .....

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it Petition by order dated 22.02.2016. The petitioner preferred Writ Appeal before the Hon'ble Division Bench against the said order in W.A.No.589 of 2016. The Hon'ble Division Bench by an elaborate order after referring to various decisions on the point, dismissed the Writ Appeal and the operative portion of the judgment is as follows:- 37. Section 85 of the Finance Act, is similar to Section 128 of the Customs Act, 1962; Section 34(3) of the Arbitration and Conciliation Act, 1996; Sect .....

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ties under the statute, cannot exercise powers to condone the delay. On the aspect of the Court, exercising powers under Article 226 of the Constitution of India, to condone the delay, we are of the view that the decision of this Court in Indian Coffee Worker's Co-operative Society Ltd.,'s case, squarely applies to the case on hand, wherein, a Hon'ble Division Bench held as follows: (c) While the High Court exercising the jurisdiction under Article 226 of Constitution of India, appro .....

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of Constitution of India, cannot re-write the provisions of the Act. 4. The above order has become final and the petitioner has not carried the matter to the Hon'ble Supreme Court. The present attempt of the petitioner in this Writ Petition is to challenge the order-in-original, which was passed on 29.06.2010., i.e., after six years, after having failed in all their earlier attempts before the Appellate Authority and before this Court i.e., both before the Single Bench as well as the Hon' .....

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ed upto March 2008 and the second show cause notice for the period from April 2008 and August 2008 and when such was the circumstances, the question of invoking extended period would not arise because there cannot be any suppression of fact, since the Department was fully aware of the facts. In support of such contention, reliance was placed on the decision of the Hon'ble Supreme Court in the case of Nizam Sugar Factory vs. Collector of Central Excise, A.Ps., reported in 2006 (197) E.L.T., 4 .....

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receipt of the same has been acknowledged by the department on 20.04.2008, an erroneous findings has been rendered, as if, ST-3 returns has not been filed. Further, it is submitted that the petitioner relied upon certain case laws and the second respondent has not even discussed about the case laws. On the above submissions, the learned counsel seeks for setting aside the order-in-original. 7. The learned Senior Standing counsel appearing for the Revenue referred to the dates and events and sub .....

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the impugned order. 8. After hearing the learned counsels at great length, this Court is of the considered view that the present challenge to the order-in-original passed in 2010, has to necessarily fail. This conclusion is supported by the following reasons. Firstly as set out in the preceding paragraphs, the petitioner had exercised the option of filing an appeal, but they were not diligent in prosecuting the matter by filing the appeal within the period of limitation. Admittedly, the appeal .....

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aid Writ Petition was dismissed and such order was confirmed by the Hon'ble Division Bench. The Writ Petition itself was filed after one year i.e., in January 2016. This delay was not explained, after which the petitioner preferred an Writ Appeal and the Writ Appeal was dismissed by the Hon'ble Division Bench in June 2016. After the dismissal of the Writ Petition, the petitioner has resorted to the present attempt to question the validity of the order-in-original. The order-in-original s .....

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s of the petition was canvassed, therefore, once over again the petitioner cannot be allowed to raise the same grounds and the petitioner is estopped from doing so. 11. With regard to the contention that extended period of limitation cannot be invoked and the applicability of the decision in the case of Nizam Sugar Factory(supra), it is relevant to note that in the petitioner's case, two show cause notices relating to a two different periods. The case before the Hon'ble Supreme Court, th .....

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etitioner is that they have been denied input credit, inspite of the department having accepted the fact that the tax has been collected. 13. The findings recorded by the second respondent is that the petitioner mislead the department to believe that the Management Consultancy services availed by them is relatable to all taxable output services rendered by them and thereby, they are eligible for cenvat credit of service tax paid on the said input service. Apart from that, they failed to file the .....

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