2013 (12) TMI 439 - AT - Service Tax

Condonation of delay - Delay to 323 days - Dealing person had gone on leave for his daughter s marriage - Order received at some other factory - Held that - factory sent the impugned order to Mumbai office and thereafter, there is no follow up action on the part of the factory. It is seen that the Sr. Manager (Taxation) appeared in personal hearing before the Commissioner (Appeals) and about more than one year, there is no effort to know whether any order was passed - applicant had not filed any affidavit narrating facts in detail in support of their contention and a general statement was made in the application - applicant would not file the appeal, unless the Department initiates recovery proceedings. There should be reasonable and acceptable explanation for the total delay ought to be condoned. The delay cannot be condoned by merely stating that the file was misplaced during the leave of Sr. Executive of a Public Limited Company - No satisfactory reason for condonation of such long delay - Condonation denied.

Issues:
1. Condonation of delay in filing the appeal due to misplaced order.
2. Negligence and inaction on the part of the appellant.
3. Consideration of sufficient cause for condonation of delay.
4. Comparison with relevant case laws for condonation of delay.
5. Dismissal of the condonation of delay application and the appeal.

Detailed Analysis:
1. The appellant sought condonation of a 323-day delay in filing the appeal, attributing the delay to the misplacement of the order received on 18.10.2010. The Senior Executive (Taxation) responsible for the appeal was on leave for his daughter's marriage during the critical period. The order was misplaced and only discovered during recovery proceedings initiated by the Central Excise Department. The appellant argued that the Senior Executive had actively participated in central excise proceedings and personal hearings before the Commissioner (Appeals). Reference was made to favorable tribunal decisions in the past.

2. The Revenue contended that the delay was a result of negligence and inaction on the part of the appellant, a Public Limited Company. They highlighted that the Senior Executive (Taxation) was not the sole responsible individual and that others could have filed the appeal in time. The Senior Executive's appearance before the Commissioner (Appeals) was noted, but no formal explanation or affidavit was provided regarding the delay.

3. The Tribunal analyzed the submissions from both sides and emphasized the need to examine the sincerity and diligence of the appellant in filing the appeal. The legal principle that the expression "sufficient cause" should be liberally interpreted was acknowledged. However, the Tribunal clarified that condonation of delay should not be granted in cases of gross negligence or total inaction. The overall facts of the case were crucial in determining whether the delay should be condoned.

4. In comparing the present case with relevant legal precedents, the Tribunal found that the circumstances did not warrant the same treatment. The Tribunal cited instances where delays were condoned due to specific reasons such as an ex-parte decree or technical issues with communication, which were not present in the current situation.

5. Ultimately, the Tribunal dismissed the condonation of delay application and the appeal, citing the lack of a satisfactory reason for the significant delay. The failure to provide a detailed affidavit, the absence of follow-up actions after sending the order to the Mumbai office, and the reliance on Departmental recovery proceedings as triggers for appeal filing were key factors in the decision. The Tribunal concluded that the delay could not be justified solely by the misplacement of the order during the Senior Executive's leave. The application and appeal were both dismissed, emphasizing the importance of diligence and proactive legal action in such matters.

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