M/S.Sabeetha Roofing India Private Limited v. The Commissioner Of Gst And Central Excise (Appeals)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 22.07.2024
CORAM:
THE HONOURABLE MR.JUSTICE C.SARAVANAN and W.M.P.(MD) Nos.14104 and 14105 of 2024 M/S.Sabeetha Roofing India Private Limited, represented by its Managing Director, B.Kesava Pillai.
... Petitioner /vs./ 1.The Commissioner of GST and Central Excise (Appeals), Coimbatore, Circuit Bench at Madurai, No.4, Lal Bahadur Sasthri Road, GST Bhawan, Bibikulam, Madurai 625 002.
2.The Deputy Commissioner of GST & Central Excise, Tirunelveli Division, Tractor Road, NGO A Colony, Tirunelveli 627 007.
... Respondents PRAYER: Writ Petition filed under Article 226 of the Constitution of India for issuance of Writ of Certiorari, to call for the records on the file of the 1st respondent in Order in Appeal No.02/2024-MDU-CE-APP dated 29.02.2024 1/8
confirming the assessment order passed by the 2nd respondent in Order in Original no. 01/CE/DC/2021 dated 22.03.2021 and to quash the both as cryptic, illegal, arbitrary, wholly without justification.
For Petitioner : Mr.N.Sudalai Muthu For Respondents : Mr.R.Nanda Kumar Senior Standing Counsel
ORDER
The petitioner is before this Court against the impugned order in Appeal No.02/2024-MDU-CE-APP dated 29.02.2024 passed by the first respondent/the appellate Commissioner.
2.By the impugned order, the appeal filed by the petitioner under Section 85 of the Finance Act, 1994, against the Order in Original No.01/CE/DC/2021 dated 22.03.2021 has been rejected on the ground of limitation. Operative portion of the impugned order reads as under:
2/8
3/8
4/8
3.The learned counsel for the petitioner submits that there is a partial delay in filing the appeal, as the limitation that was extended by the Hon'ble Supreme Court pursuant to series of directions has also expired. It is submitted that the petitioner could not file a statutory appeal in time, as the petitioner's operation had completely come to a stand still. It is submitted that only after the operations were restored, the petitioner could file an appeal on 16.09.2022, which has now culminated in the impugned order.
4.The learned counsel for the petitioner has relied on the series of following decisions:
"i) in S.Brithivirajan Vs. Joint Commissioner reported in (2024) 161 taxmann. Com 742 (Madras) ii) In Bhole Baba Milk Food Industries Ltd., Vs. Union of India reported in (2024) 161 taxmann.com 755 (Allahabad)" 5.The writ petition is opposed by the learned Senior Standing Counsel for the respondents on the ground that the writ petition is devoid of merits. It is submitted that despite the delay has been condoned by the Hon'ble Supreme Court after the outbreak of COVID 19 pandemic, the petitioner failed to availed 5/8
the opportunity and therefore the writ petition challenging the impugned order is liable to be dismissed.
6.I have considered the arguments advanced by the learned counsel for the petitioner and the learned Senior Standing Counsel for the respondents. 7.The order passed by the first respondent cannot be found fault with, as the appellate Commissioner is duty bound by the period of limitation under the Finance Act, 1994. The appeal has been dismissed strictly in accordance with the provisions of the Act. The petitioner however appears to have a case on merits. 8.That apart, the Court can take a judicial notice of the difficulties, which the assesses would have faced due to the outbreak of COVID-19 pandemic and the large scale disruption of social and economic activity of the citizens. 9.The petitioner would not gain anything by filing an appeal belatedly. The petitioner claims to have deposited Rs.61,428/-, which is approximately 20% of the total amount covered by the impugned Order in Original No.01/CE/DC/2021 6/8
dated 22.03.2021 before the first respondent for a sum of Rs.4,20,766/-. The petitioner has not disputed the amount of Rs.40,100/- towards late payment of charges.
10.Since the petitioner may have a case, this Court is inclined to rescue the petitioner subject to the petitioner depositing another 20% of the disputed tax to the credit of the Government within a period of 30 days from the date of receipt of a copy of this order. Subject to the petitioner depositing another 20% of the disputed tax in cash, the first respondent shall consider the petitioner's appeal and dispose of the same on merits and in accordance with law. 11.The Writ Petition stands disposed of, accordingly. No costs. Consequently, connected Miscellaneous Petitions are closed. Index : Yes / No 22.07.2024 Internet : Yes / No mm C.SARAVANAN, J.
7/8
mm 22.07.2024 8/8