M/S Kirit Kumar K Thaker vs. Commissioner(Appeals),Central Excise,Customs And Service Tax,Bbsr

Facts

The petitioner, M/s. Kirit Kumar K Thaker, a service provider, challenged an order dated January 27, 2022, passed by the Commissioner (Appeals), Bhubaneswar. This order rejected the petitioner's appeal against an Order-in-Original dated January 25, 2018. The original order had raised a demand of Rs. 1,37,16,671/- for service tax, education cess, and secondary & higher education cess for the financial years 2011-12, 2012-13, 2013-14, and 2014-15. The petitioner's business was alleged to fall under 'CARGO HANDLING SERVICE' and later 'SUPPLY OF TANGIBLE GOODS SERVICE'. The appeal was rejected by the Commissioner (Appeals) for non-compliance with Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944 (pre-deposit requirement) and for being time-barred.

Held

The Court held that the Commissioner (Appeals) was justified in rejecting the appeal. Regarding the pre-deposit requirement, the Court noted that while an appeal might be filed without pre-deposit, it cannot be entertained on merits unless the condition is met, as per the exposition of law in Indian Oil Corporation Vrs. Odisha Sales Tax Tribunal. The petitioner admitted non-compliance with Section 83 read with Section 35F. The Court found the petitioner's reliance on Kissan Gramodyog Sansthan misplaced as that case involved peculiar facts and subsequent compliance, unlike the present situation where no such peculiarity was demonstrated. On the issue of limitation, the Court held that the petitioner received the Order-in-Original on February 9, 2018, and filed the appeal on January 10, 2022, resulting in a delay far exceeding the statutory period of 2 months plus a condonable period of 1 month. The petitioner's explanation of legal complexities was insufficient to overcome the law of limitation. The Court referred to its decision in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited & Ors., emphasizing that statutory limitations on condoning delay cannot be circumvented, even under Article 226, mirroring the Supreme Court's stance under Article 142.

Key Issues

1. Whether the Commissioner (Appeals) was justified in rejecting the petitioner's appeal for non-compliance with the mandatory pre-deposit requirement under Section 83 of the Finance Act, 1994 read with Section 35F of the Central Excise Act, 1944? The petitioner argued that financial hardship prevented pre-deposit and relied on Kissan Gramodyog Sansthan Vrs. Commissioner of Central Excise to direct restoration of the appeal. The revenue contended that hardship is irrelevant for waiving appeal conditions. 2. Whether the Commissioner (Appeals) was justified in rejecting the petitioner's appeal as time-barred, given the delay of approximately 1430 days? The petitioner attributed the delay to complexities in law and the distinction between manpower supply and cargo handling services, urging the Appellate Authority to condone the delay pragmatically. The revenue argued that inordinate delay without sufficient cause, as envisaged under Section 85 of the Act, leaves little scope for judicial intervention under Article 226, especially when the statute interdicts discretionary power.