Plea that Chartered Accountant retained by assessee did not pursue appeal, does not absolve assessee or its officers from seeking information relating to appeal

Plea that Chartered Accountant retained by assessee did not pursue appeal, does not absolve assessee or its officers from seeking information relating to appeal

HIGH COURT OF PUNJAB AND HARYANA

Municipal Corporation, Karnal

v.

Commissioner of Central Excise

Rajive Bhalla AND Dr. Bharat Bhushan Parsoon, JJ.

STA Nos. 3 & 4 of 2013 (O&M)

AUGUST  12, 2013 

Section 86 of the Finance Act, 1994 read with section 35G of the Central Excise Act, 1944 - Appellate Tribunal - Restoration of Appeal - Assessee, a municipal corporation, was directed by Tribunal to make pre-deposit in stay application filed by it and assessee challenged pre-deposit order of Tribunal before High Court - Pending appeal against pre-deposit order before High Court, Tribunal dismissed appeal itself for non-compliance with pre-deposit order - Assessee made pre-deposit thereafter and approached High Court for restoration of appeal before Tribunal alleging that delay in compliance was caused by Chartered Accountant hired by assessee - HELD : Plea that Chartered Accountant retained by assessee did not pursue appeal, does not absolve assessee's officers from seeking information relating to appeal - But, as assessee had deposited amount determined by Tribunal and matter involves public funds, appeal was restored back to Tribunal - Assessee was directed to conduct an inquiry into lapses and fix responsibility [Para 6] [In favour of assessee]

Surjeet Bhadu  for the Appellant. Sunish Bindlish  for the Respondent.

ORDER

Rajive Bhalla, J. - By way of this order, we shall dispose of STAs No.3 and 4 of 2013 as they involve adjudication of identical question between the same parties. For the sake of convenience, facts are being taken from STA No.3 of 2013.

2. The appellant-Municipal Corporation, Karnal is before us in an appeal impugning order dated 16.04.2013, whereby, its appeals have been dismissed by the Customs, Excise & Service Tax Appellate Tribunal, New Delhi (hereinafter referred to as 'CESTAT) for failure to comply with order dated 11.12.2012, staying recovery of amount demanded by the revenue subject to pre-deposit of Rs. 4,54,230/-.

3. The revenue issued a show cause notice to the appellant. Vide order dated 30.11.2009, the adjudicating authority directed the appellant to pay Rs. 4,54,230/- along with interest and also imposed penalty of an equal amount. The Municipal Corporation filed an appeal before the Commissioner of Central Excise (Appeals) Gurgaon, which was dismissed on 30.03.2012. The Municipal Corporation filed an appeal before CESTAT accompanied by an application for staying recovery of Rs. 4,54,230/-, penalty and interest. The Tribunal allowed the application on 11.12.2012 by directing the appellant to deposit Rs. 4,54,230/-. The Municipal Corporation filed an appeal against this order, before this Court, but before the appeal could be taken up for consideration, the CESTAT dismissed the appeal vide order dated 16.04.2013 for failure to comply with order dated 11.12.2012. The operative part of the impugned order reads as follows:

"In the circumstances, there is default in compliance with the order dated 11.12.2012 of this Tribunal. Consequently, there is failure of pre-deposit by Municipal Council, Karnal. Therefore, ST/2097/2012 and 2030/2012 stand dismissed for non-compliance with the order of this Tribunal dated 11.12.2012."

4. Counsel for the Municipal Corporation submits that as the appellant has deposited the entire amount as demanded by the revenue, though after the time period fixed by the Tribunal, the lapse on the part of the appellant may be condoned, order dated 16.04.2013 passed by the CESTAT may be set aside and appeal may be restored to the CESTAT with a direction to decide the matter afresh. Counsel for the appellant further submits that the Municipal Corporation engaged a private Chartered Accountant who did not pursue the matter leading to delay in compliance with the order passed by the CESTAT and consequently, default in depositing the amount, as directed by CESTAT, within the stipulated period.

5. Counsel for the revenue submits that the Municipal Corporation has been negligent in pursuing the appeal and, therefore, may not be rewarded for its negligence by restoring the appeal to the CESTAT. It is argued that Government departments particularly local bodies are always negligent in their conduct and no consideration should be shown to the appellant as such consideration would only encourage further incompetence and negligence.

6. We have heard counsel for the parties, perused the paper book as well as impugned order. The appellant has admittedly deposited the amount directed by the CESTAT, but after delay. A perusal of the paper book would reveal that the appellant alleges that the Chartered Accountant retained to pursue the appeal, did not put in appearance, leading to delay in complying with order relating to pre-deposit and as a consequence, dismissal of the appeal. The plea that the Chartered Accountant retained by the Municipal Corporation did not pursue the appeal, did not absolve officers of the Municipal Corporation from seeking information relating to the appeal, but as the Municipal Corporation has deposited the amount determined by the CESTAT and the matter in dispute involves public funds, the appeal is allowed, impugned order is set aside and the appeal is restored to the CESTAT. The Municipal Corporation shall conduct an inquiry into the lapses and fix responsibility.

7. Parties are directed to appear before Customs, Excise & Service Tax Appellate Tribunal, New Delhi , on 23.09.2013.

Refer:[2013] 38 taxmann.com 238 (Punjab & Haryana)