CHAKIAT AGENCIES Vs. UNION OF INDIA

JUDGEMENT

(1.) By consent the main writ petition itself is taken up for final disposal. The petitioner is a Partnership firm engaged in providing services under the category of Customs House Agent's Services. The Deputy Commissioner of Central Excise issued a show cause notice, dated 4-12-2009, demanding Service Tax of Rs. 1,39,097/-. The petitioner submitted its reply, on 4-3-2011 and the same was rejected by the third respondent/the Assistant Commissioner of Central Excise, by his order dated 29-3-2011, confirming the show cause notice, dated 4-12-2009. As against the said order, the petitioner preferred an appeal before the second respondent/appellate authority along with a petition for dispensing with the payment of duty and penalty and a copy of the same has been sent to the third respondent. The second respondent passed order on the said appeal, dated 24-9-2013, confirming the order dated 29-3-2011 passed by the third respondent. The said order is challenged in the present writ petition.

(2.) Learned counsel for the petitioner submitted that the appeal has been preferred in time and the same has been addressed to the second respondent/Commissioner as well as the adjudicating officer, but unfortunately the same was given by the Adjudicating Officer and subsequently, transferred to the Commissioner's office. The second respondent/appellate authority rejected the appeal only on the ground that the appeal was not received in time. Whereas, as per the seal obtained from the office of the adjudicating officer, the appeal is presented in time. Under normal circumstances, the adjudicating officer would have automatically transferred the same to the Commissioner and even that has not been done in the petitioner's case.

(3.) The learned counsel would further submit that in similar circumstance, a Division Bench of the Andhra Pradesh High Court in Radha Vinyl Pvt. Ltd. v. The Commissioner of Income Tax and Another, 2014 310 ELT 490(A.P.)], has categorically held that it cannot be said that there was no appeal pending before the Department inasmuch as there is no categorical denial of the fact that the petitioner filed the appeal before the Department, though the same has been addressed to the Deputy Commissioner of Income Tax. He would submit that in this case, admittedly the very adjudicating officer himself has received the appeal and therefore, the impugned order is liable to be set aside.