TMI Blog2019 (11) TMI 439X X X X Extracts X X X X X X X X Extracts X X X X ..... ire the status of his proceedings till he received the e-mail dated 27.07.2018. From the order-in-appeal para-3 thereof, it is rather observed that the appellant while filing an appeal before Commissioner (Appeals) had also filed an application praying for condonation of delay of 24 days on the ground that the said order was received over e-mail on 27.07.2018 by Shri Sadanand Singh, Manager of the appellant who underlined part from para 3 of 01 A. The said application amount to dismissal in view of the order of Commissioner (Appeals) dismissing the appeal as a whole on ground of limitation. The appellant herein has committed an intentional delay despite that the pendency of proceedings and even the order-in-original was in his notice. The date of information about recovery proceedings is also missing in the appellant s submission. The reasons quoted by the appellant due to which he was prevented from filing the appeal in time are, therefore, not sufficient explanation for the delay. Since apparently and admittedly the order assailed in the present appeal is passed only on the ground of limitation, touching the merits of the case is not possible at this Tribunal level. Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the appellant has impressed upon the affidavit of Shri Sadanand Singh the Manager of appellant sworn on 12.02.2019 about receiving the order on 27.07.2018. It is submitted that the appeal filed on 25.09.2018 is within the statutory period permissible for filing the said appeal. Learned Counsel has also impressed upon that the factum of the receipt of e-mail was also brought to the notice of Commissioner (Appeals), but he has, miserably, ignored the same while holding the appeal as being barred by time. While impressing upon the merits of the case, it is submitted that the licensee fee paid to the Chhattisgarh State Government is not taxable as a retrospective exemption has been given by the government on the same in Finance Act (2) of 2019 dated 01.08.2019. Circular No. 354/136/2019 dated 11.10.2019 as issued by the government is also impressed upon submitting that it clarifies for no service tax on ground of liquor license by the state government against consideration in the form of licensee fee or application fee by whatever name called during the period from 01.04.2016 to 30.06.2017. Finally, impressing upon that the appellant otherwise has a good case to suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) Every appeal under this Section shall be in the prescribed form and shall be verified in the prescribed manner. Thus the appeal can be filed in a period of 60 days from the date of communication of the said decision to the aggrieved person. Commissioner (Appeals) has a power to condone delay of subsequent 30 days in case some sufficient cause preventing the appellant to present the appeal within the said time is shown to him. The order which was appealed before Commissioner (Appeals) was passed on 05.12.2015. It was received by the appellant vide an e-mail dated 27.07.2018 as was received by Shri Sadanand Singh, Manager of the appellant. The appeal before Commissioner (Appeals) was filed on 25.09.2018. It is also observed from the record that show-cause notice to appellant was issued on 15.05.2017, no reply to the said show-cause notice was given by the appellant. However, the original adjudicating authority afforded an opportunity of personal hearing to the appellant on 04.10.2017 when Shri Manoj Kumar, Accountant of the appellant appeared on its behalf, but for just requesting an adjustment. The next date of personal hearing was accordingly f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It becomes clear that the e-mail of 27.07.2018 was not a suo-moto e-mail but on the demand of the appellant who could not have got the copy of the order due to his unavailability at the address to which the copy of order was dispatched. It is apparent voluntary act of the appellant as was mentioned in application praying of condonation leading to non of diligence to pursue his matter. We are of the opinion that it rather amounts to acceptance of the order-in-appeal. In the given circumstances the date of communication cannot be extended to the date of receipt of e-mail. General Clauses Act about issue and notices and presumption for those to be received within 15 days of dispatch has to be accepted. Finally, in view of entire above discussion, I hold that the appellant herein has committed an intentional delay despite that the pendency of proceedings and even the order-in-original was in his notice. The date of information about recovery proceedings is also missing in the appellant s submission. The reasons quoted by the appellant due to which he was prevented from filing the appeal in time are, therefore, not sufficient explanation for the delay. Learned Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
