2019 (4) TMI 1776 - AT - Service Tax

Condonation of delay in filing appeal - reason for delay in filing the first appeal was on account of various personal problems of one of the partners of the appellant firm - sufficient cause or not - HELD THAT - This appeal filed under Section 129 A of the Customs Act and Section 129 A (5) empowers this forum to condone the delay of any number of days. Similarly, Section 128 lays down procedures and appellate jurisdiction of the First Appellate Authority. The scope and ambit of these two sections are quite clear and distinct. Also, Section 129 do not anywhere authorize this forum to enter into the domain of the first appellate authority since the scope of appellate jurisdiction is limited and that to usurp or assume the jurisdiction of the first appellate authority by this forum is clearly unauthorized. No doubt, a liberal approach should be there provided the delay is before this forum or that the sufficiency as to the reasonableness of the cause but the statute authorizes the authority alone before whom the issue is agitated, to decide both the above aspects of sufficiency or liberal approach. The Ld. First Appellate Authority has exercised its discretion in the manner and in accordance with law on the limitation and this forum is not having any jurisdiction to judge correctness or otherwise of the same. There are no reasons to interfere with the findings of the first appellate authority with regard to limitation - appeal dismissed.

Summary

Issues: Delay in filing first appeal; Jurisdiction of the appellate forum

The judgment deals with an appeal filed under Section 129 A of the Customs Act, challenging the dismissal of the appeal by the First Appellate Authority due to a delay in filing the first appeal. The appellant contended that the delay was caused by personal problems of one of the partners of the firm. The main contention was whether the delay of 9 months could be condoned by the appellate forum. The Advocate for the Appellant argued for condonation of delay, citing the need for a liberal approach in such cases. On the other hand, the Authorized Representative for the Revenue supported the decision of the First Appellate Authority, emphasizing that the power to condone the delay beyond 90 days lies only with the Court.

The Tribunal analyzed the provisions of Sections 128, 129, and 129 A of the Customs Act to determine the jurisdiction and powers of the appellate forum in condoning delays in filing appeals. It was observed that Section 129 A (5) empowers the forum to condone delays of any number of days, while Section 128 outlines the procedures and appellate jurisdiction of the First Appellate Authority. The Tribunal clarified that its jurisdiction is limited and does not extend to usurping the authority of the First Appellate Authority. The Tribunal emphasized that the statute authorizes the authority before whom the issue is raised to decide on the sufficiency of cause and the approach to be taken in condoning delays.

The Tribunal considered the grounds of appeal where the appellant argued for a liberal approach in condoning the delay, citing precedents that support such leniency. However, the Tribunal reiterated that while a liberal approach may be warranted, the discretion to condone delays lies with the authority before whom the appeal is made. The Tribunal held that the First Appellate Authority had appropriately exercised its discretion in accordance with the law on the limitation issue. Consequently, the Tribunal found no justification to interfere with the findings of the First Appellate Authority regarding the limitation and dismissed the appeal. The judgment was pronounced in open court on 16.04.2019 by the Judicial Member of the Appellate Tribunal CESTAT Chennai.