2016 (8) TMI 721 - HC - Service Tax

Condonation delay in filing an appeal before tribunal - Business auxiliary services (BAS) - commission agent - commission income earned by way of distribution and marketing units of mutual funds - Held that - Admittedly the appeal is delayed by 146 days and the appellant filed an application for condonation of delay of the aforesaid period on the premise that he was suffering from bachache as referred to hereinbefore. It is true that the appellant has to be vigilent to avail the remedy which law permits and to take appropriate steps within the period prescribed under the law but the facts which have been noticed, is that a medical certificate is already on the record to show that the appellant was sufferring from backache which may have even continued prior to the period of obtaining the medical certificate. Tribunal while dismissing the appeal has become rather harsh in rejecting the appeal of the appellant which in the facts and circumstances of the case was not required to be rejected on this premise. - Tribunal to decide the matter afresh on merit.

Summary

Issues:
1. Delay in filing the appeal before the Custom Excise & Service Tax Appellate Tribunal (CESTAT).
2. Justifiability of rejecting the appeal due to delay.
3. Consideration of medical certificate for condonation of delay.
4. Applicability of substantial question of law in the case.
5. Decision on quashing the Tribunal's order and remanding the matter.

Analysis:
1. The appeal was filed against the order passed by CESTAT due to a delay of 146 days. The Tribunal rejected the appeal on the grounds of delay.

2. The revenue claimed that the delay was not justified and objected to the appeal. The appellant contended that the delay was due to the appellant suffering from backache, supported by a medical certificate. The Tribunal's rejection of the appeal was challenged on the basis that the delay was not abnormal and should have been condoned.

3. The High Court considered the medical certificate and found that the appellant had a valid reason for the delay. The Court noted that while the appellant should have been vigilant in availing the remedy within the prescribed period, the medical condition was a reasonable cause for the delay.

4. The Court acknowledged that the delay should have been reasonably considered, especially in light of the substantial question of law arising from the Tribunal's order. The Court emphasized the importance of substantial justice and accepted the appellant's contention regarding the delay.

5. Consequently, the High Court quashed and set aside the Tribunal's order, remanding the matter back to the Tribunal for a fresh decision on merits after hearing both parties. The Court directed the parties to appear before the Tribunal on a specified date and instructed the Tribunal to dispose of the appeal expeditiously within six months.

This detailed analysis covers the issues of delay in filing the appeal, the consideration of the medical certificate, the justifiability of rejecting the appeal, the applicability of substantial question of law, and the final decision to remand the matter back to the Tribunal for fresh consideration.