2013 (7) TMI 152 - HC - Service Tax

Condoning of delay - Period of limitation in filing appeal - There was reshuffling of the tasks in the office. Learned advocate who was in-charge of this task had left the organisation and that therefore, it was not noticed that appeal was not filed promptly. - Held that the court observed that that there has been some delay in the petitioners approaching the Appellate Commissioner and the Commissioner could not have ignored the statutory limit beyond which he could have condoned the delay a decided in D.R. Industries v. Union of India (2008 (3) TMI 213 - HIGH COURT GUJARAT) - The delay was sufficiently described - The Proceedings revert back to the adjudicating authority for fresh consideration and disposal in extra-ordinary cases where an assessee can show extra ordinary circumstances explaining the delay - the assessee may invoke the writ jurisdiction of this Court but not as a matter of right the assessee would have suffered gross injustice if he could not file appeals before the Commissioner (Appeals) within a period of 90 days on account of circumstances beyond their control the court did not express any final opinion on Cenvat credit involved petition allowed in the favour of the assessee.

Summary

Issues:
1. Challenge to order-in-original passed by adjudicating authority.
2. Dismissal of appeal by Commissioner(Appeals) due to delay.
3. Request for interference in adjudicating authority's order.
4. Opposition to petition by department.
5. Examination of delay and gross injustice.
6. Setting aside of adjudicating authority's order.

Detailed Analysis:
1. The petitioners challenged an order-in-original directing the recovery of CENVAT credit and imposition of penalty. The appeal was dismissed by the Commissioner(Appeals) due to delay in filing beyond the condonable period. The petitioners questioned the order and sought interference.

2. The petitioners did not challenge the legality of the Appellate Commissioner's order but argued for interference in the adjudicating authority's order. They explained the delay in filing the appeal, citing reasons such as reshuffling of tasks in the office and the departure of the advocate responsible for the task. The counsel also relied on a Tribunal decision supporting their case.

3. The department opposed the petition, arguing that the appeal was rightly rejected by the Commissioner due to the delay in filing. They questioned whether the issue was covered by the Tribunal's decision mentioned by the petitioners and requested the dismissal of the petition.

4. The High Court, after hearing both parties, noted the delay in approaching the Appellate Commissioner but decided to put the matter back to the adjudicating authority. The Court referred to a previous judgment allowing examination of the validity of the order-in-original in cases of explained delay and potential gross injustice.

5. The Court found the delay sufficiently explained and indicated a prima facie opinion that the Tribunal's decision might be relevant to the case. The impugned order by the adjudicating authority was set aside, and the proceedings were sent back for fresh consideration after granting a hearing to the petitioner.

6. The Court clarified that no final opinion was expressed on the question of CENVAT credit availment. The petition was disposed of accordingly, with the matter returned to the adjudicating authority for further proceedings in accordance with the law.