2013 (10) TMI 1010 - AT - Service Tax

Condonation of delay - Held that - The filing of the rectification application without a signature should have resulted in summary rejection. However, the Commissioner took time to reflect on the defective rectification application and passed orders on its merits on 8.5.2013. In the above circumstances, we find a contributory conduct on the part of the Commissioner as well, which contributed to certain extent to the delay in filing of the appeal. Since the reason offered for the delay is not wholly satisfactory but the petitioner would suffer irreparable injury if the delay is not condoned, we consider it appropriate to condone the delay on condition that the petitioners /appellants remit Rs.10,000/- to the credit of Revenue, within two weeks from today towards costs for condonation of the delay. In default of such deposit within the time stipulated, COD application Nos.55910, 55912 and 55914/2013 shall stand rejected - delay condoned.

Summary

Issues:
Delay in preferring appeals against adjudication orders dated 27/31.08.2011 - Condonation of delay sought due to rejection of rectification application - Rectification application not signed - Liability assessed against proprietor and managing partner of converted partnership firm - Contribution of Commissioner to delay in filing appeal - Irreparable injury if delay not condoned - Condition to remit Rs.10,000/- for condonation of delay.

Analysis:

The judgment deals with the issue of condonation of delay in preferring appeals against adjudication orders dated 27/31.08.2011. The delay of 54 days was sought to be condoned based on the rejection of a rectification application filed before the Commissioner. The rectification application, filed on 19.11.2012, was not signed and sought rectification against the adjudication order on the grounds that proceedings were initiated against the proprietor and managing partner after the entity was converted into a partnership firm. The liability was assessed for both periods, even though the show cause notice was issued against the partnership and not the proprietor. The Commissioner, despite the defective rectification application, took time to pass orders on its merits on 8.5.2013.

The Tribunal acknowledged a contributory conduct on the part of the Commissioner, which to some extent contributed to the delay in filing the appeal. While the reason for the delay was not deemed wholly satisfactory, the Tribunal considered it appropriate to condone the delay to prevent irreparable injury to the petitioner. However, a condition was imposed that the petitioners/appellants must remit Rs.10,000/- to the credit of Revenue within two weeks from the date of the order as costs for condonation of the delay. Failure to make this deposit within the stipulated time would result in the rejection of the applications and dismissal of the respective appeals. The counsel for the petitioners was present during the proceedings and was duly informed of the obligations under the order.

The judgment further directed the listing of the matter on 2.9.2013 for hearing the stay applications, provided the condition of remitting Rs.10,000/- was complied with in the meantime. Overall, the Tribunal balanced the considerations of delay condonation with imposing a financial cost as a condition, ensuring that the interests of both the petitioners and the Revenue were taken into account.