JMJ CONSTRUCTIONS Vs. ASSISTANT COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Heard the learned counsel for the petitioner, as well as the learned counsel appearing on behalf of the respondents. It has been stated that the petitioner-firm was involved in the business of construction of civil foundations, for the erection of communication towers, by M/s. Bharat Sanchar Nigam Limited, during the assessment years 2005-2006 and 2006-2007. The respondent-Department had considered the construction activity of the petitioner as a taxable service covered under the category of commercial and industrial construction service, and that, therefore, the petitioner is liable to pay service tax, with effect from September 10, 2004. Hence, the petitioner had paid the service tax, along with the interest, on March 7, 2007 and March 26, 2008, for the years 2005-2006 and 2006-2007, before any show-cause notice had been issued to the petitioner. The petitioner was under the impression that it had paid the entire service tax, in terms of section 73(3) of the Finance Act, 1994. However, the Assistant Commissioner of Central Excise, Salem-I Division, the first respondent herein, had issued a show-cause notice, dated April 21, 2008, demanding service tax, as well as interest and also proposing to levy penalty. In the said notice it was also stated that the service tax and interest, already paid by the petitioner, may be appropriated.

(2.) It has been further stated that the petitioner had given a written explanation for the said show-cause notice. The first respondent had proceeded to pass an order-in-original, dated October 31, 2008, without accepting the explanation submitted by the petitioner, demanding the payment of service tax of Rs. 1,25,014 and the interest of Rs. 15,486, and imposing a penalty of Rs. 1,25,014, under the provisions of the Finance Act, 1994. Aggrieved by the said order of the first respondent, dated October 31, 2008, the petitioner had preferred an appeal before the second respondent. However, there was a delay of 525 days in filing the said appeal. Therefore, the petitioner had filed an application to condone the delay of 525 days in filing the appeal. However, the second respondent, without considering the facts and circumstances of the case, had refused to condone the delay stating that he does not have the power, as per section 85 of the Finance Act, 1994, to condone the delay of over three months. Accordingly, he had passed the order, dated January 27, 2011, rejecting the appeal filed by the petitioner, as time-barred.

(3.) It has been further stated that the petitioner had preferred an appeal before the third respondent challenging the order of the second respondent, dated January 27, 2011. The third respondent had passed a cryptic order, dated October 21, 2011, dismissing the appeal, by stating that the delay cannot be condoned. In such circumstances, the petitioner has preferred the present writ petition before this court, under article 226 of the Constitution of India.