TMI Blog2021 (9) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment whereof was to be made on or before June 30, 2020, which the petitioner did not make - petitioner had inadvertently filed its declaration under SVLDR Rule 3(2)(b), i.e., amount in arrears, instead of SVLDR Rule 3(2)(a), which is under the category where the show cause notice of one or more appeals is pending as on June 30, 2019. It appears that such mistake was a bonafide mistake of having filed the SVLDR form under a wrong category. Thus, it would be in the interest of justice that an opportunity be granted to the petitioner to avail the benefit of the scheme, if any other conditions under the scheme are being fulfilled by the petitioner. Condonation of delay in filing application - HELD THAT:- The condonation of delay application was rejected by the Commissioner (Appeals) on the assumption that he had no power to condone delay after 90 days, though in fact the appeal was filed within 90 days. Considering the fact that the order-in-original dated March 16, 2018 was received by the petitioner on March 24, 2018 and the appeal was filed on June 21, 2018, which is on the 88th day, in our opinion, the Commissioner (Appeals) was not correct in rejecting the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. An investigation was initiated by the Anti-Evasion Wing of Raigad Central Excise Commissionerate against the petitioner in February, 2014 and in pursuance thereto, a show cause-cum-demand notice dated February 15, 2016 demanding payment of service tax for the period from 2010-11 to 2014-15 amounting to ₹ 1,36,21,188/was issued to the petitioner. On account of the default in making payment, the Director of the petitioner-company was arrested and was taken into judicial custody. Thereafter, he was granted bail by an order passed by a learned Single Judge of this Court on September 23, 2015. 3. The petitioner has contended that the petitioner regularized its service tax returns and filed the same for the period from October, 2010 to March, 2015 on December 26, 2015. It is stated that the petitioner had made a total payment of ₹ 75,29,209/towards service tax upto January 7, 2016. As the petitioner could not clear the entire outstanding payment and as the petitioner was in default, the Joint Commissioner, CGST, Central Excise and Sales Tax, Raigad vide order in original dated March 16, 2018 confirmed the outstanding duty amount of ₹ 1,36,21,188/- payable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... persons who fell in four categories, to avail the reliefs under the said scheme. The petitioner has contended that in fact the relevant category as far as the petitioner was concerned was persons to whom a show cause notice was issued or whose one or more appeal arising out of such notice which was pending as on the 30th day of June, 2019 falling under SVLDRS Rule 3(2)(a). The petitioner has stated that correspondingly, as per Section 124(1)(a) (ii), the petitioner was liable to pay 50% of the total tax liability when the amount was more than rupees fifty lakhs on the ground that the petitioner s case was a case in the category of applicants whose appeal was pending. 7. After Form SVLDRS-3 was generated to the petitioner in February, 2020, the petitioner realized that it had inadvertently filed its declaration under SVLDRS Rule 3(2)(b), namely, the amount in arrears, instead of SVLDRS Rule 3(2)(a) (category interalia where appeal arising out of show cause notice is pending as on June 30, 2019). According to the petitioner, this was an inadvertent error and/or a confusion in filing form SVLDRS-3 in different category, as the appeal of the petitioner was pending as on June 30, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order in original dated March 16, 2018 was received by the petitioner on March 24, 2018 and aggrieved by the same, the petitioner had filed its appeal on the 88th day from the date of receipt of the order in original. The petitioner also refers to the note on the order-in-original which is in Hindi intimating the petitioner that an appeal could be filed within 90 days from the date of receipt of the order in original. Thus, the petitioner s contention is of an ex-facie error committed by the Commissioner in dismissing the appeal on the ground that it was not filed within 90 days and there was a delay of 3 days. The petitioner also contends that the appellate authority also did not consider the delay condonation application of the petitioner. The petitioner has also brought to the notice of the Court that the covering note enclosing the order-in-original as served on the petitioner, apart from the note in Hindi indicating that an appeal could be filed within 90 days from the date of receipt of the order-in-original, there is also an English version that the appeal be filed within two months. Pointing out such discrepancy, the petitioner has contended that the order dismissing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ays is erroneous. If that be so, the petitioner was entitled to the benefit of the error. Even otherwise, the condonation of delay application was rejected by the Commissioner (Appeals) on the assumption that he had no power to condone delay after 90 days, though in fact the appeal was filed within 90 days as noticed above. Considering the fact that the order-in-original dated March 16, 2018 was received by the petitioner on March 24, 2018 and the appeal was filed on June 21, 2018, which is on the 88th day, in our opinion, the Commissioner (Appeals) was not correct in rejecting the appeal as time barred. On this count, the order dated March 16, 2018 passed by the Commissioner (Appeals), in our opinion, would be required to be set aside and the petitioner s appeal to be restored to the file of the appellate authority. 14. We, accordingly, partly allow this petition by the following order: (i) The respondents are directed to consider the petitioner s application under SVLDR scheme in accordance with law under the SVLDR Rule 3(2)(a), namely, where the appeals are pending, if not ineligible under any other conditions and an order in accordance with law be passed on such applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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