SHANTHI BUILDERS Vs. ASSISTANT COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) Heard Mr.S.Murugappan, learned counsel for the petitioner and Mr.K.Ravi, learned Senior Standing Counsel for the revenue. With the consent on either side, the writ petition is taken up for disposal.

(2.) The petitioner has challenged an order passed by the respondent being Order-in-Original No.04/2012-ST dated 26.07.2012, by which, the respondent has confirmed the demand of service tax as made in the show cause notice dated 10.10.2009 and directed the petitioner to pay a sum of Rs.1,23,454/- apart from demanding interest Section 75 of the Finance Act, 1994 and imposing penalty. The petitioner preferred an appeal as against the said order before the Commissioner (Appeals), who by order dated 04.03.2014 dismissed the appeal as being time barred. The Commissioner (Appeals) did not go into the merits of the matter and has held that he had no jurisdiction to condone the delay beyond the period of 90 days from the date of the order-in-original. The petitioner carried the matter to the CESTAT and this appeal was dismissed by the CESTAT by order dated 25.09.2014 for the very same reason and holding that the Commissioner (Appeals) was fully justified by stating that he had no power to condone the delay. The petitioner filed appeal before the Hon'ble Division Bench in CMA.No.103 of 2015. Before the Hon'ble Division Bench, the petitioner submitted that the petitioner is entitled to the benefit of exemption notification bearing No.6/2005-S.T. dated 01.03.2005 as amended by notification No.8/2008-S.T. dated 01.03.2008. Therefore, the petitioner sought for liberty to assail the correctness of the show cause notice dated 10.10.2009 and sought leave of the Hon'ble Division Bench to withdraw the appeal and assail the correctness of the show cause notice.

(3.) It appears that the Hon'ble Division Bench was prima facie satisfied with the submission made on behalf of the petitioner, permitted the petitioner to withdraw the appeal with liberty to them to assail the correctness of the show cause notice, if he is otherwise entitled to in law. By way of this writ petition, the petitioner has challenged the order-in-original as the show cause notice has culminated in such a manner.