HIGH COURT OFCHHATTISGARH AT BILASPUR D.B. HON'BLE SHRI DHIRENDRA MISHRA. & HON'BLESHRI R.N. CHANDRAKAR. JJ Appellant : Versus Respondents 1. 2. 3. Appellant Versys Respondents 1. 2. 3. TaxCaseNo.52oT2008 Leopard Guards (India) Through Partner, R.M. Chaudhary, 16/5, Nehru Road, Supela, Bhilai, Tehsil & District Durg (CG) Union of India, Through the Secretary, Department of Custom & Central Excise (Finance) New Delhi. The Deputy Commissioner, Centrat Excise Range - II, Bhilai, District Durg (CG) Superintendent, Custom & Central Excise, Circle -1, Jamul.Bhilai, District Durg, CG. And Tax Case No. 53 of 2009 Leopard Guards tndia (P) Ltd. Through Partner, R.M. Chaudhary, 16/5, Nehm Road, Supela, Bhilai, Tehsil & District Durg (CG) Union of India, Through the Secretary, Department of Custom & Central Excise (Finance) New Delhi. The Deputy Commissioner, Central Excise Range - II, Bhilai, District Durg (CG) Superintendent, Custom & Central Excise, Circle - 1, Jamul, Bhilai, District Durg, CG. Present Mr. Satyendra Sahu, counsel for the appellant. Mr. Bhishma Kinger, counsel for the respondents. ORAL ORDER (28th April, 2010) Per Dhirendra Mishra. J . . Both these appeals are being disposed of by this common order as the issue involved in these appeals is simitar. The appellant has preferred these appeals under Section 35G of the Central Excise Act, 1944 (for brevity "the AcT) read with Section 83 of the Finance Act against the order dated 30 June, 2008 passed by the Customs, Excise & Service Tax Appellate Tribunal, Principal Bench, New Delhi (in "^ ;' FiF AkSS^^, short 'Tribunal"), whereby the Tribunal has dismissed the appeals preferred against the decision of the Commissioner (Appeals), by rejecting the applications for condonation of delay of 1460 days in filing the appeals. The appellant has also filed applications IA Nos.03 for amending the Memo of Appeals for incorporating substantial questions of law arising for adjudication ofthe appeals. The applications are allowed and the appellant is permitted to address on the substantial questions of law proposed in the applications for amendment. Briefly stated, facts of the case as projected in the Memo of Appeats, are that the appellant-Firm is operating security services in Bhilai area since 1994. The Firm obtained registration certificate under Section 69 of the Finance Act, 1994 vide Annexure A/2. Respondent No.2 imposed service tax to the tune of Rs.1,51,646/- & Rs.84,726/- for the period from 16.10.1998 to 30.9.1999 respectively vide Annexure A/3. The appellant preferred appeals against the order of the Commissioner (Appeals) before the Tribunal with applications for condonation of delay of 1460 days in filing the appeals. In the aforesaid applications, the appellant stated that he has already paid Rs.47,450/- according to the order passed by the appellate commissioner. However, on consultation with his legal advisor, he discovered new fact of agreement (Annexure A/5), which was not produced befbre the Commissioner (Appeals) and therefore, the same could not be considered by the first appellate authority. The Tribunal rejected the aforesaid reason for delay of 1460 days in filing the appeals and observed that delay in filing appeal cannot be condoned on the ground of discovery of new fact. Learned counsel for the appellant submits that the agreement between the appellant and his clientwas a material document for fastening Ifability bf service tax as the same was in force in the relevant year; the same could not be produced before the Adjudicating Authority and the Commissioner (Appeals) as the appellant discovered the same subsequently. However, the Tribunal without considering the importance of the document, summarily rejected the applications for condonation of delay on the ground that the discovery of new fact cannot be a ground for condoning the delay. Reliance is placed on the decision of the Supreme Court in the matters of Stete ofKamataka Vs. Y. Moldeen Kunhi & others, reported in 2009 AIRSCW 4491. "^ x ,.tl.» ^^^^^^^^^^^^^^^^^^^^^ ~-Si A ^/ On the other hand, Shri Bhishma Kinger, teamed counsel Tor the respondents, submits that an appeal under Section 35G ofthe Act against the order of the Tribunal can be entertained onty if the case involves substantial question of law. The substantial questions of taw proposed by the appellant in his applicatlons do hot arise for adjudication of these appeals as the Tribunal has dismissed the applications for condonation of delay onty on the ground ttiat discovery of new fact may not be a ground for condoning the delay of 1460 days and the appetlant has failed to assign sufficient cause for delay of 1460 days in filing the appeals. That apart, any claim for refund of duty can be made within one year from the date of deposit as per Section 11-BoftheAct. We have heard learned counsel for the parties and have carefully examined the substantial questions of law proposed by the appellant. Since the Tribunal has not decided the issue on merits, no substantiat question of law, as proposed by the appellant, arises for adjudication of these appeals. In Y. Moideen KunhS (supra), the Hon'ble Supreme Court considering that the question of law was involved in the matter and it also involved 4000 acres of land, including 3500 acres of forest land, and delay was occasioned On accountof connivance of the public officers, condoned the delay of 6500 days in filing the appeal. However, facts of the present case are distinguishable from that of the cited case as in the instant case, the appellant preferred the appeals with applications for condonation of delay of 1460 days before the Tribunal. In his applications, the appellant stated that the appeals were being filed with a delay of 1460 days as he discovered a new fact in the form of agreement between the appellant and his client and the same was not considered by the forums below as he could not produce the same for their perusal. No other reason has been assigned by the appellant for condoning the delay. In our considered view, the Tribunal rightly held that discovery of new fact by a party cannot be considered to be a sufficient cause for condoning the detay of 1460 days. We find no substance in these appeals; the same deserve to be and are, accordingly, dismissed. Sd/- \ _. J?d/" DhirendraMishra 1 R-N-chMldrakar ^Judge'"~~-| Judge ^ ^^- .ra^ "^^—