2013 (11) TMI 343 - AT - Service Tax

Condonation of delay - Held that - There is no point to keep the Application pending awaiting the report from the Commissioner s Office. However, we find that the Applicant has substantiated their claim by filing an affidavit dated 26.06.2013 that the Order was communicated to them on 09.02.2010. In absence of any contrary evidence produced by the Department, we do not find any reason not to accept the claim of the Applicant - Decided in favour of assessee. Stay application - Held that - service tax amount has been appropriated in the impugned Order passed by the Deputy Commissioner. In these circumstances, predeposit of the penalty is waived and its recovery stayed during pendency of the Appeal. The Stay Petition is allowed - Stay granted.

Summary

Issues:
Delay in filing the appeal, condonation of delay, communication of the order, waiver of penalty, stay of recovery during appeal.

Delay in filing the appeal:
The Miscellaneous Application sought condonation of a delay of 14 months and 16 days in filing the appeal. The Authorized Representative for the Applicant explained that although the impugned Order was dated 27.01.2010, it was communicated to them on 09.02.2010 and received on 28.09.2011. The appeal was filed within the normal period of 3 months from the date of communication. An affidavit was filed in support of this claim. The Tribunal found no reason to keep the Application pending as the Applicant substantiated their claim, and in the absence of contrary evidence from the Department, the claim was accepted. The Application seeking condonation of delay was allowed to be withdrawn by the Applicant.

Communication of the order:
The Applicant provided evidence through an affidavit that the Order was communicated to them on 09.02.2010. Despite the Revenue's efforts to verify this with the Commissioner's Office, no report was received. The Tribunal, after considering the evidence presented by the Applicant and the lack of contrary evidence from the Department, accepted the claim regarding the communication date of the Order.

Waiver of penalty and stay of recovery during appeal:
During the hearing, it was disclosed that the service tax amount involved was Rs.3,29,616, which had been paid by the Applicant along with interest during the adjudication proceedings. The Revenue confirmed that the service tax amount had been appropriated in the impugned Order. Consequently, the predeposit of the penalty was waived, and the recovery of the penalty was stayed during the pendency of the Appeal. The Stay Petition was allowed with the consent of both sides.

This judgment by the Appellate Tribunal CESTAT Kolkata addressed the issues of delay in filing the appeal, communication of the order, waiver of penalty, and stay of recovery during the appeal. The Tribunal accepted the Applicant's claim regarding the communication date of the Order, allowed the withdrawal of the Application seeking condonation of delay, and granted the Stay Petition with the waiver of penalty and stay of recovery during the appeal process.