2015 (11) TMI 1485 - AT - Service Tax

Condonation of delay - Delay of 124 days - Held that - The order-in-original is dated 26.2.2014 and had it been received in time, it is possible that appellant would have filed appeal prior to 6.8.2014 in which case no mandatory pre-deposit would have been required to be made. Be that as it may, as the Order-in-Original was received almost five months after its date the appeal was filed after 6.8.2014 and as has been held by Allahabad High Court in the case of Ganesh Yadav (2015 (7) TMI 304 - ALLAHABAD HIGH COURT), the mandatory pre-deposit of 7 1/2 % in such a case is non-derogable . However, the ld. Consultant for the appellant pleads that the entire delay in filing appeal took place because it took the appellant consideration time before they could arrange funds for making mandatory pre-deposit. - However, in the overall facts and circumstances of the case, the financial hardship as is prima facie evident form the provisional state of affairs (though unaudited) and bank statement and in view of the Supreme Court observations - Delay condoned.

Summary

Issues:
Delay in filing appeal and seeking condonation of delay.

Analysis:
The case involved a COD application filed to condone the delay of 124 days in filing an appeal. The appellant cited financial hardship as the reason for the delay, supported by a provisional statement of affairs and various judgments, including the Supreme Court judgment in Collector, Land Acquisition Anantnag vs. MST, Katiji. The respondent argued that the appellant should have been prepared for filing the appeal within the stipulated time and questioned the authenticity of the appellant's financial state. The appellant's consultant submitted a bank statement as evidence, while the respondent contended that there could be other bank accounts.

The tribunal considered the submissions from both sides. It noted that if the order-in-original had been received in time, the appeal could have been filed before the deadline without the need for a mandatory pre-deposit. However, due to the delay in receiving the order, the appeal was filed after the deadline, necessitating the mandatory pre-deposit as per the judgment of the Allahabad High Court. The appellant's consultant argued that the delay was due to the time taken to arrange funds for the pre-deposit, invoking the Supreme Court's observations on the need for substantial justice over technical considerations. The respondent contended that the appellant should have been prepared and arranged for funds in advance to avail the appellate remedy.

Considering the financial hardship evident from the provisional statement of affairs and the bank statement, albeit unaudited, and in light of the Supreme Court's observations emphasizing substantial justice, the tribunal concluded that a satisfactory cause had been shown for condoning the delay. As a result, the COD application was allowed, and the delay was condoned.