NICE CONSTRUCTION Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner was engaged in construction activities. The petitioner was liable to pay service tax on such services provided. The petitioner, however, did not obtain registration under the service tax nor paid such tax. The respondent authorities, therefore, after carrying out investigation, issued a show-cause notice dated 25.01.2012 calling upon the petitioner as to why unpaid service tax with interest and penalty be not recovered. Admitted position is that, the petitioner filed no reply to such show-cause notice. The adjudicating authority also fixed various dates for personal hearing. Despite which, no one appeared for the petitioner before the adjudicating authority. The authority, therefore, finally passed order dated 27.08.2013 confirming the duty demand with interest and penalties. Against such order, statute provided appeal to the Appellate Commissioner which could be presented within 60 days. The statute also enabled the appellate authority to condone delay to a maximum of 30 days on the appellant showing sufficient cause preventing it from presenting appeal within the period of limitation. In other words, statutorily, the Appellate Commissioner had no power to condone any delay beyond a period of 30 days. Admittedly, the petitioner filed such appeal with a delay of 48 days and thus, such appeal was filed 18 days beyond the maximum period, for which, the Commissioner could ignore the delay. The petitioner's appeal, therefore, came to be dismissed only on the ground of non-condonable delay, upon which, the petitioner has filed these petitions in similar circumstances. Learned counsel for the petitioner submitted that, even if the Commissioner had no power to condone the delay, the Court could, in exercise of writ jurisdiction under Article 226 of the Constitution, examine the legality and propriety of the order in original passed by the adjudicating authority. Such a view has been consistently taken by this Court in large number of decisions rendered by Division Benches. The issue came to be finally settled upon reference made to three Judge Bench in case of Panoli Intermediate (India) (P.) Ltd. v. Union of India , [2015] 51 GST 720/, 59 taxmann.com 248 (Guj.)(LB). The larger Bench rendered its opinion as under:--

(2.) Counsel further contended that, on the raw material consumed by the petitioner in construction work, there was exemption of 67% of the value from payment of service tax. The adjudicating authority had adopted figures available in the balance-sheet of the petitioner-company. If the appropriate exemption notification was applied by the adjudicating authority, the tax demand would have come down to a third of what was confirmed, corresponding penalty also would be reduced.

(3.) On the other hand, learned counsel Shri Oza for the department opposed the petitions contending that the petitioner had not replied to the show-cause notice nor participated in the hearings fixed from the adjudicating authority from time to time. Even the appeal was filed after delay. Petitions may, therefore, be dismissed.