Rajesh Balakrishna Kumar vs. Commissioner Of GST (Appeals )

Heard Sri Mahesh R. Uppin, learned counsel for petitioner and Sri Jeevan J. Neeralgi, learned counsel for respondents.

The petitioner, a Civil Contractor, undertakes certain work of construction, repair and reconditioning and had obtained a Service Tax Registration Certificate for the purpose. An order comes to be passed by the Assistant Commissioner of Central Excise and Central Tax - the original authority on HC-KAR NC: 2025:KHC:29736

2024, imposing tax to the tune of `10.00 lakhs on the score and collecting a penalty of a sum of `10,000/- under Section 77(1)(c) of the Finance Act, 1994 (for short ‘the Act’). Against the said order of penalty by the original authority, the assessee has a remedy of filing an appeal. The appeal, but, has to be preferred within sixty days, from the date of communication of the order.

Learned counsel for the petitioner submits that the order was communicated on 01.06.2024. Therefore, the appeal, in terms of law, had to be preferred on or before 1st August 2024, which would be sixty days from the date of communication of the order. The appeal which was sent by registered post, was registered on 02.08.2024 by the appellate authority. On the score that the appeal is preferred after a day's delay, the appeal is declined to be entertained and therefore, the petitioner is before this Court in the subject petition.

The learned counsel for the petitioner would reiterate the averments made in the petition to contend that the appeal requires a deposit of 7.5% of the tax so imposed. The 7.5% HC-KAR NC: 2025:KHC:29736 deposit was sought to be attempted by the petitioner on three occasions. On the third occasion, i.e. on 29.07.2024, the deposit was accepted. He would take the Court through a document appended to the petition to demonstrate that the deposit was accepted on 29.07.2024. Learned counsel for the petitioner would submit that the appellate authority has not considered the same and therefore would contend that the appeal was in time and had to be entertained on its merit.

Learned counsel Sri. Jeevan J. Neeralagi, appearing for respondents would refute the submissions in contending that the mandate of the statute is that a person aggrieved against the order of the original authority should file an appeal within sixty days. Condonation of delay application, if preferred, will be entertained, extending the limitation period by another thirty days and not beyond that. He would submit that there is no application seeking condonation of delay.

I have given my anxious consideration to the submissions made by the respective learned counsels and have perused the material on record.

The afore-narrated facts, dates, link in the chain of events, are not in dispute. The issue lies in a narrow compass as to whether the assessee petitioner has preferred an appeal within time or otherwise. An order against which the petitioner files the appeal is dated 29.05.2024, which is admittedly communicated to him on 01.06.2024. Therefore, the appeal had to be preferred within sixty days i.e. on or before 01.08.2024. The petitioner seeks to deposit the amount at 7.5% of the tax that is necessary to prefer an appeal on several occasions and is accepted on 29.07.2024. The tax challan of the web portal of the Central Board of Indirect Taxes and Customs at Annexure B, is as follows: SHPK 9135L 001 YZ0 401 24076 76613 13/08 /2024 Sathish kulal77 @gmail. com 92421 03844 Rajesh Bala krishna Kumar 81,500 29.07. 2024 Hema Nivas 3-1- 147 V V Road Bannanje Udupi Udupi 002000S TYZ0401 0349069 3620608 30 Paid SHPK 9135L 001 YZ0 401 24076 76558 13/08 /2024 Sathish kulal77 @gmail. com 92421 03844 Rajesh Bala krishna Kumar 81,500

The dashboard of the track challan is clearly indicative of the fact that the petitioner has deposited a sum of `81,500/- at 7.5% on 29.07.2024. Therefore, it was well within limitation of 01.08.2024. Simultaneously, the petitioner has sent the appeal by way of registered post to the appellate authority. This is also not in dispute. It is received by the appellate authority and registered on 02.08.2024. Therefore, the date is taken as 02.08.2024. On 20.02.2025, the appellate authority rejects the appeal. The relevant portion of the order reads as follows:

Section 85 of the Act deals with filing an appeal before the Commissioner / Collector of Central Excise against an order passed by the Assistant Commissioner of Central Excise, as is done in the case at hand. Section 85 of the Act reads as follows:

In the considered view of this Court, the appellate authority has glossed over the fact that on 29.07.2024, the deposit was in place. If only the appellate authority had looked into the dash board of the CBITC that the deposit was in place,

In that light, there was no necessity for the petitioner to file any application seeking condonation of delay in the case on hand for the appellate authority to reject the appeal on the ground of delay and no application for condonation of delay being filed. A day's delay i.e., 24 hours delay being taken note of when there is no delay, is not only technical, but hyper HC-KAR NC: 2025:KHC:29736 technical, which the authorities ought to have avoided and answered the issue on its merit.

For the aforesaid reasons, the petition deserves to succeed. Accordingly, I pass the following: ORDER i) The petition is allowed; ii) The impugned order dated 20.02.2025 passed in Appeal No.MLR-EXCUS-000-APP-AS-136- 2024-25, by the first respondent vide Annexure G, is hereby quashed. iii)