1. The appellant is in appeal against the impugned order wherein the Ld. Commissioner (A) has dismissed their appeal as time barred. The brief facts of the case are that the show cause notice was issued to the appellant to demand service tax on 18.10.2012 on constructing of Agro Mall for Haryana State Agriculture Marketing Board (HSAMB). The appellant did not pay service tax on the ground that the Haryana State Agriculture Marketing Board is a statutory authority and any services provided to a statutory authority service tax is not payable but the order in Original demanded service tax from the appellant on 29.01.2014 which were received by the appellant on 03.02.2014. The said order was challenged by the appellant before the Hon'ble Punjab and Haryana High Court on 28.02.2014 and the Hon'ble Punjab and Haryana High Court was pleased to issue notice of motion in the said civil writ petition no. 3863/2014 and the stay of the demand to grant on 03.03.2014, thereafter, the Hon'ble Punjab and Haryana High Court decided the writ petition filed by the appellant on 19.02.2015 holding that the said order can be challenged before the Ld. Commissioner (A) to consider the application for
Please Login To View The Full Judgment!
condonation of delay in sympathetic manner, thereafter, the appellant filed appeal before the Ld. Commissioner (A) on 29.03.2015, the appeal was dismissed by the ld. Commissioner (A) as time barred by invoking the provisions of Section 35 of Central Excise Act, 1944 wherein the appellant is required to file the appeal within 60 days of the receipt of the adjudication order and the same can be extended further 30 days on explaining satisfactory reasons for causing delay. Aggrieved from the said order, the appellant is before me.
2. Heard the parties and considered the submissions.
3. In this case the facts and events are not in dispute, therefore, the same are not discussed here. Further, I find that the Hon'ble Punjab and Haryana High Court have disposed off the writ petition filed by the appellant on 19.02.2015 and thereafter within 26 days, the appellant filed the appeal before the ld. Commissioner (A). In that circumstances, provisions of Section 35 of the Central Excise Act, 1944 are to be read in a manner with the limitation for filing the appeal shall start from 19.02.2015 as held by this Tribunal in the case of M/s Mehul Jhaveri reported in : 2013 (288) ELT 301 (Tri. Mumbai) wherein this Tribunal observed as under:
5. After considering the submissions made by both sides, we find that the following facts are not in dispute that the Order-in-Original was passed on 21-8-1987 and the same was challenged before the Hon'ble Bombay High Court in September, 1987 and the Hon'ble Bombay High Court had disposed the Writ Petition on 18-3-2010 with a direction to the appellant to file an appeal before the appellate authority within four weeks from today along with an application for condonation of delay. Admittedly, in this case the appellant has filed an appeal within four weeks as directed by the Hon'ble Bombay High Court. The only dispute in this case is that whether the time consumed in litigation before the Hon'ble Bombay High Court during the period from September, 1987 to 18-3-2010 is excludable for limitation purpose or not?
5.1. The issue has been dealt by the Hon'ble Punjab & Haryana High Court in the case of M/s. Vijay Brothers (supra), wherein the appellant filed a Writ Petition before the Hon'ble High Court of Punjab & Haryana on May 9, 1976 against the order passed by the adjudicating authority on February 16, 1976. The said petition was objected by the Revenue on maintainability on the ground that there is an effective alternative remedy of appeal provided the Act and without exhausting that remedy, the writ petition could not be maintained and vide order dated 13-8-1976, the petition was dismissed. Thereafter, appellant filed SLP before the Hon'ble Apex Court against the order and the same was also dismissed on 26-10-1976 on the ground that the appellant shall exhaust their remedy of appeal before the appellate Collector. Thereafter the appellants filed an appeal before the Appellate Collector of Customs against the order on 16-2-1976, which was received according to the appellant on 18-2-1976. This appeal was dismissed on the ground that under Section 128 of the Customs Act, an appeal could have been preferred within three months from the date of communication to the appellants of the decision or order appealed against and even the powers of the Collector of Excise and delay was restricted to another three months and since the appeal was filed after more than six months from 16-2-1976, it was barred by limitation. The appellant preferred a revision to the Govt. of India and the same was also dismissed on 21-12-1978 affirming the decision of the appellate authority. Thereafter, the appellant filed a Writ Petition praying for quashing the order dated 16-2-1976, and the orders of the Appellate Collector and the Government of India dismissing the appeal and revision, respectively holding that it is barred by limitation. The Single Judge of the Hon'ble High Court was of the view that the appellate authority has no jurisdiction to entertain the appeal after the expiry of the total period of six months and that Section 14(2) of the Limitation Act could not be invoked by the appellants for calculating the period of limitation of six months. Against that order, the appellant preferred LPA before the Division Bench. Thereafter the Hon'ble High Court observed as under:-
"14. In this case as we have already pointed out, the appellants questioned the validity of the original order in the earlier writ petition. The respondent took the objection that without exhausting the alternative remedy of appeal, the appellants shall not be permitted to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution. That contention was accepted both by this Court as also in the Supreme Court. After the disposal when the appellants filed the appeal before the Appellate Authority that appeal is now dismissed as not filed in time and the net result is the appellants did not have any decision on merits by the Appellate Authority. We are also satisfied and in fact it was not in dispute that the appellants were prosecuting diligently and bona fide the proceedings in this Court and the Supreme Court. If we now, therefore, dismiss it again holding that the Appellate Authority in not exercising its power was not liable to be interfered with, then the appellants would go without a decision on merits. It is in those circumstances the learned counsel at one stage also contended that if for any reason, we are of the view that Section 14(2) of the Limitation Act could not be invoked, we should decide the question on merits and not to dismiss the same as any such dismissal will do the appellants great injustice though on facts, the "appellants were found to have been bona fide pursuing in a wrong forum for a remedy. Since we have come to the conclusion that Section 14(2) is applicable to the facts and circumstances of the case, we refrain from going into the merits of the appeal.
15. For the foregoing reasons, we are of the view that Section 14 of the Limitation Act is applicable to the proceedings under the Customs Act in respect of an appeal provided under Section 128 and the time spent in the High Court in the abortive attempt to invoke the jurisdiction of the High Court under Article 226 of the Constitution and before the Supreme Court will have to be excluded. If we exclude the time, there can be no doubt that it was within the period of six months. The bona fides of the appellants in pursuing the remedy under Article 226 of the Constitution was never in dispute. In fact, the writ petition itself was filed within the period of three months from the date of the service of the order and there can be no doubt that it is in the view that the order was without jurisdiction they sought to invoke the jurisdiction of the High Court under Article 226 of the Constitution before filing an appeal and not to by press the appeal as such.
16. We, therefore, allow the appeal, set aside the order of the learned Judge and that of the second respondent, dated March 22, 1977, and the third respondent, dated December 21, 1978, directing the second respondent to take the appeal on file and to dispose of the same on merits. However, there will be no order as to costs."
5.2. We have also examined the case law relied upon by the learned AR. The cases relied upon by the learned AR, the Hon'ble High Court of Delhi in the case of Delta Impex (supra) dealt with Section 5 of the Limitation Act, 1963, which is not applicable to the appeal under the Customs Act before the Commissioner (Appeals) as extension of time of 30 days has already been given for condoning the delay subject to satisfaction and not beyond that. Further, in the case of IVP Ltd. (supra), the appeal was filed before this Tribunal and this Tribunal considered the fact that Writ Petition filed before the Hon'ble High Court was withdrawn by the appellant with liberty to approach the CESTAT about its delayed filing. Therefore, the facts of the said case are not relevant to the facts of this case. In the case of Singh Enterprises (supra), the appeal was filed after 21 months from the date of the services of the order dismissed by the Commissioner (Appeals). In this case, the appeal was filed before the Commissioner (Appeals) with delay of 21 months and Commissioner (Appeals) dismissed the appeal on the ground of limitation that the same is filed beyond the period of 30 days of condonable period. The said order was taken up to the Hon'ble Apex Court that the Hon'ble Apex Court has inherent power to condone the delay. In that case the Hon'ble Apex Court considered that the Section 128 of the Customs Act, 1962 prescribed time-limit for filing the appeal before the Commissioner (Appeals) and the same cannot be extended. Therefore, the facts of that case are also not relevant. But, in this case, the contention of the appellant is that they challenged the adjudication order before the Hon'ble High Court of Bombay in September, 1987 and the same has been disposed of by the Hon'ble Bombay High Court on 18-3-2010 with a direction to the appellant to file an appeal within four weeks before the appellate authority. Therefore, the facts of the case of M/s. Vijay Brothers (supra) are applicable to the facts of the case in hand. Accordingly, we hold that the time taken by the appellant in litigation before the Hon'ble Bombay High Court is to be excluded for calculating the time for filing the appeal before the Commissioner (Appeals). If the time taken by the appellant in litigation before the Hon'ble Bombay High Court is excluded then the appeal filed before the Commissioner (Appeals) is within the time.
6. In view of the above observations, we set aside the impugned order and remand the matter back to the Commissioner (Appeals) to consider the issue involved in the matter on merit and thereafter pass an appropriate order after giving a reasonable opportunity to the appellant to present their case. The appeal is disposed of in the above terms.
Admittedly, the appellant has filed the appeal before the Ld. Commissioner (A) within 26 days after the disposal of their writ petition by the Hon'ble High court of Punjab and Haryana. In that circumstances, I hold that the appellant has filed the appeal before the Ld. Commissioner (A) within time, therefore, the impugned order is set aside. Further, I find that the Ld. Commissioner (A) has not decided the issue on merits, therefore, the matter is remanded back to the Ld. Commissioner (A) to decide the issue on merits and on the basis of various judicial pronouncements on the issue.
The appeal is disposed off way of remand