2019 (8) TMI 1751 - AT - Service Tax

Condonation of delay in filing the appeal - wrong statement made in the application filed for condoning the delay that the original order had not been served upon the Appellant - HELD THAT - The hearing of the delay condonation application will not be adjourned, learned Counsel for the Appellant/ Applicant has not appeared today to press the delay condonation application. As is clear of the earlier order dated 22 February, 2019, the original copy of the order-in-appeal dated 18 September, 2018 was served upon the learned Counsel of the Appellant on the 24 September, 2018 as is clear from the dispatch register - Despite this fact, a wrong statement was made in the application filed for condoning the delay that the original order had not been served upon the Appellant. Service of the original order upon the learned Counsel for the Appellant is service upon the Appellant. It has also been stated by the learned Counsel for the Appellant that the same Counsel who had appeared before the Commissioner (Appeals) had instructed the learned Counsel who had drafted this Appeal. Though, learned Counsel for the Appellant had sought time to verify the facts, but learned Counsel has not appeared today to press the application. When the order had actually been served on the Appellant on 24 September, 2018, the delay has not been explained to the satisfaction of the Tribunal - the delay condonation of the matter is liable to be rejected and is rejected - Appeal dismissed.

Summary

Issues:
Delay in filing the appeal, Service of appellate order, Condonation of delay

Delay in filing the appeal:
The appeal was filed with an application seeking condonation of delay as the order impugned was dated 18 September, 2018, and the appeal was filed on 11 March, 2019. The appellant claimed that they only became aware of the order in January 2019 when the service recipient stopped payment due to recovery proceedings. The appellant repeatedly requested the Department for a certified copy of the order but only received a photocopy on 22 February, 2019. The Department claimed that the original order was served on the appellant's Counsel on 24 September, 2018, and service on Counsel is considered service on the party. The Tribunal noted that despite the service on Counsel, the appellant failed to explain the delay satisfactorily, leading to the rejection of the delay condonation application and dismissal of the appeal.

Service of appellate order:
The Commissioner (Appeals) confirmed in a communication that the original order was served on the appellant's Counsel on 24 September, 2018, with the Counsel's signature on the dispatch register. The appellant had claimed in the delay condonation application that they were not served with a certified copy of the order, but the Tribunal held that service on the Counsel is sufficient. The appellant's Counsel, who had appeared before the Commissioner (Appeals), had instructed the Counsel who drafted the appeal. Despite seeking time to verify facts, the appellant's Counsel did not appear to press the application, leading to the rejection of the delay condonation and dismissal of the appeal.

Condonation of delay:
The Tribunal granted multiple opportunities for the appellant's Counsel to verify facts and press the delay condonation application. However, the Counsel did not appear to press the application, and it was noted that the delay in filing the appeal was not satisfactorily explained. Consequently, the delay condonation application was rejected, and the appeal was dismissed by the Tribunal. The original order was served on the appellant's Counsel, which was considered sufficient service on the appellant, and the delay was attributed to the appellant's lack of satisfactory explanation.