2015 (8) TMI 1016 - HC - Service Tax

Condonation of delay - Inordinate delay of 536 days - Delay due to ill health of advocate - Held that - the reasons stated by this petitioner for the delay, it appears that there were reasonable grounds for condonation of delay, which were not appreciated by the CESTAT, Kolkata and the Appeal 2015 (8) TMI 1015 - CESTAT KOLKATA preferred under Section 35 B (3) of the Central Excise Act, 1944, was dismissed without going into its merit. But, Since a huge liability of Tax and penalty have been imposed upon this petitioner vide the Order in Original and therefore, in our view, the points taken in the Order in Original should have been decided on merits. - in the present case all possible steps were taken by the appellant and had there been a timely intimation by its Advocate, delay would not have occurred and therefore the appeal should not have been dismissed merely on the ground of delay because a litigant should not suffer because of ill health of the Advocate - Delay condoned.

Summary

Issues:
1. Delay condonation application dismissal by CESTAT, Kolkata.
2. Appellant's submission of unintentional delay.
3. Affidavits and certificates not appreciated by CESTAT, Kolkata.
4. Reasons for delay and subsequent actions by the appellant.
5. Respondent's argument against the delay condonation.
6. Judicial analysis of the delay condonation application.

Issue 1: The writ petition challenges the dismissal of a delay condonation application by CESTAT, Kolkata. The appellant sought condonation of a 536-day delay in filing an appeal due to various reasons, including the ill health and subsequent demise of the appointed advocate. The CESTAT dismissed the application, leading to the writ petition.

Issue 2: The appellant argued that the delay was unintentional, citing the sequence of events, engagement of a new legal team, and timely steps taken once aware of the situation. The appellant emphasized the lack of fault on their part and the efforts made to rectify the delay promptly.

Issue 3: The appellant presented affidavits and a certificate to support their claim of unintentional delay, highlighting the circumstances leading to the delay in filing the appeal. However, CESTAT, Kolkata did not appreciate these submissions, leading to the appeal for condonation being rejected.

Issue 4: The appellant detailed the timeline of events, including engaging a new legal team after the previous advocate's inability to file the appeal due to illness. The appellant promptly took action upon retrieving the case files and filed the appeal within a day of completing the necessary paperwork.

Issue 5: The respondent contended that CESTAT, Kolkata correctly dismissed the delay condonation application, arguing that no reasonable explanation was provided for the 536-day delay in filing the appeal under the Central Excise Act, 1944.

Issue 6: The High Court analyzed the reasons for delay and the actions taken by the appellant. Referring to relevant judicial pronouncements, the court found no fault on the appellant's part and emphasized the importance of deciding appeals on merits rather than technicalities. The court ultimately condoned the delay, setting aside CESTAT's order and restoring the appeal and stay application for further consideration.

In conclusion, the High Court allowed the writ petition, condoned the delay with a cost, and reinstated the appeal and stay application for review by CESTAT, Kolkata.