REX ADVERTISERS Vs. COMMISSIONER OF SERVICE TAX, BANGALORE

JUDGEMENT

(1.) THERE is a delay of 42 days in filing the appeal. The appellant is a proprietary concern. He has filed an Affidavit explaining the reasons for delay in filing the appeal. In the Affidavit, it is stated that the Accountant, Mr. P.J. Das Gupta who received the impugned order had left the company without handing over any of the relevant papers. The learned Counsel relies on the Tribunal ruling rendered in the case of Evergreen Plywood Indus. (P) Ltd. v. CCE, Patna [2002 (148) E.L.T. 788 (Tri. - Kolkata)] wherein the delay of 31 days in filing the appeal on the very ground has been condoned. He relies on the Apex Court judgment rendered in the case of State of Nagaland v. Lipok AO [2005 (183) E.L.T. 337 (S.C.)], besides several other judgments. The learned DR also relies on several judgments in support of the Revenues claim and prays for the dismissal of the COD application and the appeal.

(2.) ON a careful consideration of the submissions made by both the sides, we notice that the Tribunal has accepted the identical reason given in the case of Evergreen Plywood Indus. (P) Ltd. v. CCE, Patna (supra). The Apex Court in the case of State of Nagaland v. Lipok AO (supra) while granting condonation of delay has held that strict and pedantic view should not be taken in a case where there is no gross negligence on the part of the appellant. The appellant has filed an Affidavit explaining the reasons inasmuch as the concerned employee who received the impugned order left the job without handing over the relevant papers. In view of the reason as explained above and in the light of the judgments cited by the learned Counsel, the delay in filing the appeal in the matter is condoned. The COD application is allowed and the stay application is taken up for the disposal.

(3.) THE appellant is required to pre -deposit Service Tax amount of Rs. 1,15,023/ - and a penalty of Rs. 2,31,546/ -. The Revenue has proceeded to consider the appellant as a Service Provider under the category of advertising agency. The learned Counsel submits that the appellants have not carried out any activity relating to advertisement services. They were only providing the space for the advertisement which does not fall within the category of advertising agency. He relies on the Boards Circular No. 64/13/2003 -S.T., dated 28 -10 -2003 wherein it was clarified that mere space selling does not fall under the category of advertisement services. He relies on several rulings of the Tribunal on the very issue and submits that the issue is covered in favour of the appellants.