2014 (3) TMI 371 - AT - Service Tax

Condonation of delay - Appeal dismissed as beyond limitation - Held that - assessee, if, had filed an application for condonation of delay, the same could have been allowed by the first appellate authority. In our view, a delay of ten days in filing the appeal before the first appellate authority could have been condoned as it lies within the power vested with the first appellate authority. Suffice to say that such power vested with the first appellate authority should have been exercised and the matter should have been disposed of on the merits of the case, we are constrained to set aside the impugned order and remand the matter back to the first appellate authority. We set aside the impugned order, condone the delay filed before the first appellate authority though the delay application was not filed, and direct him to restore the appeal to its original number and dispose the same on merits by speaking order - Decided in favour of assessee.

Summary

Issues:
1. Appeal dismissed by the first appellate authority as hit by limitation.
2. Lack of diligence on appellant's part in filing the appeal within the statutory period.
3. Failure of the first appellate authority to inform the assessee to file an application for condonation of delay.
4. Whether the delay of ten days in filing the appeal could have been condoned by the first appellate authority.

Analysis:
The judgment by the Appellate Tribunal CESTAT Ahmedabad dealt with an appeal where the first appellate authority had dismissed the appeal filed by the appellant as it was deemed hit by limitation. The first appellate authority based its decision on the fact that the appeal was filed after the statutory period of two months from the date of the impugned order. The authority noted a lack of diligence on the appellant's part for not filing an application for condonation of delay, which was required due to the delay of ten days in filing the appeal. The Tribunal observed that the first appellate authority should have informed the assessee to file such an application before making a decision on the limitation issue. The Tribunal opined that the delay of ten days could have been condoned by the first appellate authority, and therefore set aside the impugned order and remanded the matter back to the first appellate authority for a fresh decision. The Tribunal directed the first appellate authority to restore the appeal to its original number, consider the case on its merits, and ensure that principles of natural justice are followed in arriving at a conclusion.

The judgment highlighted the importance of the first appellate authority exercising its power to condone delays within its jurisdiction and ensuring that the appellant is given an opportunity to provide reasons for any delay in filing the appeal. By setting aside the initial decision and remanding the matter, the Tribunal emphasized the need for a fair consideration of the case on its merits without precluding any issues from being examined by the first appellate authority. The judgment ultimately allowed the appeal by way of remand, indicating a successful challenge to the dismissal based on limitation and a fresh opportunity for the appellant to present their case before the first appellate authority.