K.S.JHAVERI,J. - (1.) By way of this appeal, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has disposed of the appeal of the appellant on the ground of limitation.
(2.) The appeal was admitted on 27-9-2016 on the following substantial question of law:- "Whether dismissal of appeal by rejecting the application seeking condonation of delay in filing of appeal in the facts and circumstances of the case and in law could not be countenanced and appeal needs to be restored to the file of the CESTAT for decision afresh affording opportunity of hearing to the appellant to secure the ends of justice?"
(3.) He invited our attention to the observation made by the Commissioner vide order dated 30-11-2007 towards the fact that ample opportunities were granted to the appellant which reads as under:- "The Commissioner (Revenue), JNN vide his letter No. F-6/07/319, dated 21-7-2007 submitted reply to the show cause notice stating that they were taking action for recovery of Service Tax Against those firms who had been given Revenue [Hoarding] Licence by JNN. The JNN had issued notices for recovery of Service Tax. He further added that they were in process of taking action for opening Service Tax Account and soon the Service Tax Registration shall be taken. He also submitted list of outstanding Service Tax on their licence holders along with photostat copies of Notices issued. He also submitted that they after taking urgent action, they will inform the Department. Thereafter, a personal hearing was given on 25-7-2007. Sh. Babu Lal Bohra, Revenue Officer, JNN appeared for Personal Hearing and stated that they were in the process of obtaining Registration for Service Tax and as soon as the service Registration is taken, the Service Tax shall be deposited. He requested to grant one month's for depositing the Service Tax. Further dates were fixed for 27-8-2007 and 27-9-2007 and nor any one appeared on the dates so fixed. Three opportunities have already been provided to the Noticee. The case is taken up for decision on the basis of facts available on record. Discussion and Findings:- I have carefully gone through the facts of case show cause notice, written reply and submissions given during Personal Hearing. It is an admitted position that the JNN, provided taxable service under the category of sale of space or time "for advertisement services" as defined in sub-clause (zzzm) of Section 65(105) of the Finance Act, 1994 and charged and received, amount of Rs. 2,82,81,500/- on this account of providing the record which attracted Service Tax @ 12% on amount so received, and Education Cess @ 2% on Service Tax @ 12% on amount so received, and Education Cess @ 2% on Service Tax. M/s. JNN at no point of time, whether through written reply or during personal Hearing have contested the applicability of Service Tax. M/s. JNN during their Personal Hearing on 25-7-2007 and through written submissions dated 21-7-2007 had agreed to deposit due Service Tax after recovering from their license holders. It is clear from the facts of the Case and legal position M/s. JNN are liable to pay Service Tax being service provider in terms of Section 68 of Finance Act, 1994, as amended along with interest payable thereon. Failing to pay the Service Tax, M/s. JNN are also liable to penal action under Sections 76, 77 and 78 of Finance Act, 1994 for contravention of the provisions of Section 66, 67, 68, 69 and 70 of Finance Act, 1994 read with Rules 4, 5, 6 and 7 of Service Tax Rules, 1994. No discretion has been allowed under the Statute for any relaxation in leviability of penalty even when the defaulter is a Public Institution like Municipal Corporation therefore, penalties prescribed in law have to be imposed.";