TMI Blog2016 (10) TMI 461X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The findings rendered by the second respondent is perfectly justified and valid. 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 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 dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r took no steps to question the order passed by the Commissioner (Appeals), as they could have gone before the Tribunal, namely, the CESTAT against the order passed by the Commissioner (Appeals). 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 Authority rejecting his appeal to comply with the demand m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne 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, approves the correctness of the order of the appellate authority, it has no power to direct the appellate authority to consider the appeal on merits as otherwise it would be nothing but Court extending the period of limitation. (d) Even if the High Court accepts the explanation given by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. 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., 465 (S.C.). 6. The next contention raised by the learned counsel is that the impugned order-in-original has been passed on assumptions and presumptions, though in paragraph 12 of the impugned order, the respondent has accepted that they collected tax, but erroneously denied input tax credit and without conducting proper investigation, the order has been passed. It is further submitted that though the petitioner had filed the form ST-3 returns for the relevant financial year i.e., 2007-08, and the receipt of the same has been ackno ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le limit. 9. In the Writ Petition, which was filed challenging the order passed by the Appellate Authority in W.P.No.5194 of 2016, the petitioner has elaborately raised various grounds touching upon the merits of the assessment made on them. Though the prayer sought for is to set aside the order passed by the Appellate Authority and to direct the appeal to be heard on merits, nevertheless the contentions as regards the merits of the assessment have been raised. The said 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuing the first show cause notice and the second show cause notice. Therefore, the decision in the case of Nizam Sugar Factory(supra), will not apply to the facts of the present case. 12. The another contention raised by the petitioner 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 cenvat credit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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