2015 (8) TMI 1309 - AT - Service Tax

Condonation of delay - appeal - a partner left the business after receiving impugned order - no evidence produced regarding the other partner left the business before filing the appeal - Held that - It is well settled law that condonation of delay in filing of appeal is discretionary power. It cannot be exercised arbitrarily. It is to be looked into as to whether the Applicant was diligent and sincere in filing the appeal. It is also to be noted here that the Applicant had placed the facts in detail. Here, Applicant had not placed any material in support of their contention that the other partner has left the business. It is also not disclosed as to how it came to the knowledge in detail - application of condonation of delay in filing appeal rejected - appeal dismissed.

Summary

Issues:
Delay in filing appeal, condonation of delay, partner retirement from firm, diligence in filing appeal.

Delay in filing appeal:
The Applicant filed an application for condonation of delay in filing the appeal of 148 days. The learned Advocate representing the Appellant stated that one partner received the impugned order and left the business, causing the delay. He argued that there was no malafide or negligence on the part of the Applicant, citing a previous unconditional stay granted by the Tribunal in a similar case. On the other hand, the Authorised Representative for the Revenue contended that the Applicant did not provide sufficient evidence on how they became aware of the order or whether the other partner had retired before the appeal was filed.

Condonation of delay:
The Tribunal, after hearing both sides and reviewing the records, noted that the Applicant's explanation for the delay was centered around one partner leaving the business without informing the other partner about the impugned order. However, the Tribunal agreed with the Revenue's representative that there was a lack of evidence regarding the retirement of the partner from the firm and how the knowledge of the order was acquired. The Tribunal emphasized that the condonation of delay is a discretionary power and must be exercised judiciously. In this case, the Tribunal found that the Applicant failed to provide substantial evidence supporting their claim of the partner's departure from the business, leading to the rejection of the condonation application and the subsequent dismissal of the appeal.

Partner retirement from firm:
The key point of contention was the partner's retirement from the firm and its impact on the delay in filing the appeal. The Applicant claimed that the partner who received the order had left the business, leading to a lack of awareness on the part of the other partner regarding the impugned order. However, the Tribunal highlighted the absence of concrete evidence supporting this claim, emphasizing the importance of providing detailed and verifiable information in such cases.

Diligence in filing appeal:
The Tribunal underscored the importance of diligence and sincerity in filing appeals, stating that condonation of delay cannot be granted arbitrarily. While the Applicant presented their case in detail, the Tribunal found a lack of material supporting the assertion that the partner had indeed retired from the business. Without substantial evidence, the Tribunal concluded that the Applicant did not demonstrate the required diligence in filing the appeal, leading to the rejection of the application for condonation of delay and the subsequent dismissal of the appeal.

Conclusion:
The Tribunal rejected the application for condonation of delay in filing the appeal, citing the lack of evidence regarding the partner's retirement from the firm and the circumstances surrounding the awareness of the impugned order. Consequently, the appeal was dismissed, emphasizing the necessity of providing concrete and verifiable information to support claims in such legal proceedings.