2016 (9) TMI 428 - AT - Service Tax

Condonation of delay outdoor catering services infirmities in the quantification of demand - rectification of mistakes sought by filing ROM petition - Section 74 of the Act - non-service of ROM order Held that - rejection order of ROM was not served on the appellant or their authorized signatory, though it was furnished to the person who was not authorized signatory of appellant - the time taken from the date of impugned order till receipt of rejection of ROM order has been satisfactorily explained by appellant no deliberate intention on the part of the appellant delay condoned decided in favor of appellant.

Summary

Issues:
Condensation of delay in filing appeals before the Tribunal due to rejection of ROM petition without proper service of order.

Analysis:
The appellant, a provider of taxable outdoor catering services, filed two COD applications seeking condonation of a delay of 1188 days each in filing appeals before the Tribunal. The delay occurred as the ROM petition filed for rectification of mistakes in the Order-in-Original was rejected without proper service of the rejection order. The appellant contended that the delay was not intentional but due to genuine reasons. The appellant had filed the ROM petition under Section 74 of the Finance Act, 1994 before the Commissioner seeking rectification. However, the ROM petition was rejected without proper service of the rejection order to the appellant or their authorized signatory. Upon becoming aware of the rejection, the appellant promptly sought a copy of the order and filed the appeals. The appellant argued that the appeals were filed in time before the Tribunal considering the date of receipt of the ROM rejection order.

The Revenue opposed the condonation of delay, arguing that the appellant could have filed an appeal against the original order within the stipulated period instead of pursuing rectification through the ROM petition. The Revenue contended that condoning the delay would set a precedent and that the appellant was attempting to challenge the order on merits through the ROM petition. The Revenue prayed for the dismissal of both COD applications on the grounds of lack of merit.

After hearing both sides and examining the facts, the Tribunal found that the appellant had been pursuing their remedy in a bona fide manner since the date of the impugned order. The Tribunal noted that the rejection order of the ROM petition was not properly served on the appellant or their authorized signatory, leading to a delay in filing the appeals. The Tribunal concluded that there was no deliberate intention on the part of the appellant to cause delay, as the time taken from the impugned order to the receipt of the ROM rejection order was satisfactorily explained. The Tribunal held that condoning the delay was justified in this case, as there was no conscious attempt by the appellant to delay the proceedings. The Tribunal allowed the COD applications, emphasizing that the decision had no precedential value and was based on the specific facts and circumstances of the case.

In summary, the Tribunal granted condonation of delay in filing the appeals before the Tribunal, considering the genuine reasons for the delay due to the rejection of the ROM petition without proper service of the rejection order. The Tribunal found no deliberate intention on the part of the appellant to cause delay and allowed the COD applications based on the peculiar facts and circumstances of the case.