DAYS INN DECCAN PLAZA Vs. COMMISSIONER OF SERVICE TAX (APPEALS)-I; ADDITIONAL COMMISSIONER OF SERVICE TAX

JUDGEMENT

(1.) Heard Mr.A.P.Ayyam Perumal, learned counsel for the petitioner and Mr. A.P.Srinivas learned Senior Standing counsel appearing for the Revenue and with the consent on either side, the Writ Petition itself is taken up for final disposal.

(2.) The petitioner in this Writ Petition challenges an order-in-original passed by the second respondent, dated 29.10.2010, in and by which, the second respondent disallowed Cenvat Credit availed by the petitioner and demanded the same under Rule 14 of the Cenvat Credit Rules, read with Section 73(1) of the Finance Act, 1994, apart from demanding interest and imposing penalty.

(3.) Against the order-in-original, dated 29.10.2010, the petitioner was entitled to file an appeal before the Commissioner (Appeals), Chennai, however, the petitioner did not file the appeal within the period of limitation as stipulated under Section 85 of the Finance Act and there was a delay of seven months and 11 days in filing the appeal before the Commissioner (Appeals). The Commissioner (Appeals) rejected the appeal by order dated 01.12.2014, as it was filed beyond the statutory period of limitation and the Appellate Authority has no power to condone the delay. For over one year, the petitioner took no steps to question the order passed by the Commissioner (Appeals), as they could have gone before the Tribunal, namely, the CESTAT against the order passed by the Commissioner (Appeals). However, the petitioner did not take any steps to challenge the said order of the Commissioner (Appeals), by exhausting the remedy available under the Act, which provided for a further appeal to the CESTAT. After waiting for about one year, the Department issued a recovery notice, dated 08.12.2015, and the demand was not complied with. This was followed by another notice dated 08.01.2016. Thus, effectively, the petitioner had been given one full year, after the order passed by the Appellate Authority rejecting his appeal to comply with the demand made in the order-in-original. At that juncture, on 27.01.2016, the petitioner filed a Writ Petition before this Court in W.P.No.5194 of 2016, to quash the order-in-appeal and direct the Appellate Authority to decide the appeal on merits. This Court after taking into consideration the decision of the Hon'ble Supreme Court in the case of Albert and Co., vs. Commissioner of Service Tax, 2015 37 STR 187 (Mad), dismissed the Writ Petition by order dated 22.02.2016. The petitioner preferred Writ Appeal before the Hon'ble Division Bench against the said order in W.A.No.589 of 2016. The Hon'ble Division Bench by an elaborate order after referring to various decisions on the point, dismissed the Writ Appeal and the operative portion of the judgment is as follows:-