- (1.) At the outset, Mr.Ananda Sen, learned advocate for the appellant submits that the delay of two days in filing the appeal may be condoned, which Mr.Bharadwaj, learned advocate for the respondent, in his usual fairness, does not oppose. Therefore, the delay in filing the appeal is condoned. Let the appeal be registered, if it is otherwise in form.
(2.) Since necessary documents are on record, by consent of Mr.Sen and Mr.Bharadwaj, the appeal is treated as on days list and is taken up for hearing.
(3.) This appeal has been preferred against the judgement and order dated 25th June, 2015 passed in W.P. No. 526 of 2015 (Bengal Investments Limited v. Assistant Commissioner (TARC) Service Tax-I & Ors.) whereby the writ petition was dismissed by the learned Single Judge holding, inter alia, as under : "The writ petitioner has approached this Court essentially challenging the orders dated 31st December, 2012, 7th October, 2013, 4th December, 2014 and the issuance of the recovery notice dated 20th February, 2015, all passed and/or issued by various authorities under the Finance Act, 1994 and the Service Tax Rules, 1995. It is noticed that the initial order, being the order-in-original, was passed on 31st December, 2012 by the Additional Commissioner, Service Tax, Kolkata upon giving adequate opportunity of hearing to the petitioner and after recording cogent reasons in support of his decision whereby a demand of service tax including CESS was confirmed for a sum of Rs.4,69,141/- together with penalty for a sum of Rs.2,34,571/-. It is noticed that some leniency was also shown by the said authority while dropping a demand of Rs.6,86,841/-. Nevertheless, being aggrieved, the writ petitioner preferred an appeal before the Commissioner of Central Excise (Appeal) under section 85 of the Finance Act, 1994, on 30th of June, 2013, i.e. much beyond the period of limitation, as prescribed under the statute. The petitioner however, made an application for condonation of delay wherein the only ground that was taken was that the concerned person to whom work was entrusted for service tax matters was absent due to his ill health for a long period of time. Written submission was also advanced by the petitioner and finally on 7th October, 2013, the Commissioner of Central Excise (Appeals), Appeal-I, Kolkata, passed an order observing that the appellant (being the writ petitioner) had filed the appeal after more than six months from the date of receipt of the order. Since he had no power to condone the delay of more than one month, he proceeded to observe that the appeal was liable to be dismissed and dismissed the appeal, being time barred. The writ petitioner, thereafter, went up before the Appellate Tribunal, being, the Customs Central Excise and Service Tax Appellate Tribunal, East Regional Bench at Kolkata. The Tribunal while referring to section 85 of the Finance Act, 1994 and relying on the judgment of the Supreme Court rendered in M/s.Singh Enterprises v. Commissioner of Central Excise, Jamshedpur & Ors., 2008 221 ELT 163 SC proceeded to dismiss the writ petitioners appeal observing that the Commissioner (Appeals) had not been vested with the power to condone the delay beyond the period of one month in addition to the statutory limit of two months as prescribed under section 85 of the 1994 Act. In such a factual backdrop, the writ petitioner has now approached this Court. The learned advocate appearing on behalf of the petitioner relies on a judgment of the Supreme Court rendered in the case of State of U.P. v. Mohd. Nooh, 1958 AIR(SC) 86. He submits that the initial order passed by the adjudicating authority was so patent and loudly obtrusive, it was liable to be interferred with by the Commissioner (Appeals) and even if the Commissioner (Appeals) did not have any statutory power to condone the delay, the High Court, in exercise of its jurisdiction under Article 226 of the Constitution of India, ought to interfere. On the other hand, the learned advocate representing the Central Excise authorities refers to and relies upon the same decision which was referred to and relied upon by the Customs, Excise and Service Tax Appellate Tribunal, East Regional bench, Kolkata. In the facts and circumstances of the instant case what is required to be considered is whether the initial order passed by the Additional Commissioner, Service Tax, Kolkata dated 31st December, 2012 can be held to be so patent and loudly obtrusive that this Court will interfere with the same under Article 226 of the Constitution of India. As observed earlier, the said order has been passed after adequate opportunity of hearing was granted and is supported with cogent reasons. All relevant facts have been taken into consideration and by no stretch of imagination it can be held that the said order is so patent and loudly obtrusive, which will warrant an interference by the writ Court. That apart and in any event, there is no infirmity of reasoning in respect of the subsequent order passed by the Commissioner of Central Excise (Appeals), Appeal-I, Kolkata dated 7th October, 2013 and finally, the order passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata dated 4th December, 2014, affirming the order of Commissioner of Central Excise (Appeals), Appeal-I, Kolkata, while referring to and relying upon section 85 of the Finance Act, 1994 and the judgment of the Supreme Court in the case of M/s.Singh Enterprises . For reasons stated above, the writ petition is liable to be dismissed and is accordingly dismissed.";