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2019 (11) TMI 439

..... ng license for conducting the aforesaid business of retail sale liquor in malls - reverse charge mechanism - whether Commissioner (Appeals) has rightly held the appeal before him to be barred by time? HELD THAT:- 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. There is no denial on part of the appellant for receiving the show-cause notice and no apparent demand for seeking an opportunity to reply. The initial adjudicating proceedings were also in his notice and even his employee a .....

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..... horised Representative (DR) for the Respondent ORDER In the present appeal the order-in-appeal No. 002-463/18-19 dated 14.12.2018 dismissing the appeal at threshold on the point of it being beyond the period of limitation has been assailed. 2. Facts of the appeal in brief are : The appellant is in the business of retail sale of liquor in malls under the license from Chhattisgarh State Excise department. Department s case is that the services provided by the government or a local authority by way of granting permission/licenses have been subjected to Service Tax under reverse charge w.e.f. 01.04.2016 by virtue of notification No. 18/2016-ST dated 01.03.2016. Department received an intelligence that the appellant is engaged in evasion of serv .....

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..... e 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 .....

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..... ct, 1944 which reads as follows : (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise , may appeal to the Commissioner of Central Excise (Appeals) hereafter in this Chapter referred to as the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order : Provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown at any stage of hearing of .....

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..... ppear subsequently except submitted a letter dated 26.10.2017, enclosing a copy of order of High Court of Chhattisgarh dated 04.09.2017. Thus the order-in-original was passed considering said letter as submission on behalf of the appellant. This perusal makes it clear that there is no denial on part of the appellant for receiving the show-cause notice and no apparent demand for seeking an opportunity to reply. The initial adjudicating proceedings were also in his notice and even his employee appeared on 04.10.2017. Apparently and admittedly there is no effort on part of the appellant to enquire 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 .....

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..... ted 27.07.2018. 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 entir .....

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..... the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the appellate authority to entertain the appeal by condoning delay only up .....

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