2017 (8) TMI 1005 - AT - Service Tax

Condonation of delay in filing appeal - Section 14 of the Limitation Act - Held that - so far the delay in filing this appeal before the Tribunal is concerned the limitation is adequately explained and accordingly, I hold that the time taken before the Hon ble High Court is required to be excluded under the provisions of Limitation Act and on such exclusion the appeal seems filed within time - delay condoned. As the classification of service is also in dispute in the present appeal, the appeal is transferred to Division Bench for final hearing - appeal allowed in part and part matter on remand.

Summary

Issues:
1. Delay in filing the appeal before the Tribunal.
2. Delay in filing the appeal before the Commissioner (Appeals).
3. Condonation of delay application.
4. Transfer of appeal to Division Bench for final hearing.
5. Classification of service in dispute.

Analysis:

1. Delay in filing the appeal before the Tribunal:
The appellant filed the appeal against the Order-in-Appeal dated October 22, 2014, after a delay of 935 days. The appellant argued that they were advised to move before the High Court in a Writ Petition, which was dismissed on April 3, 2017. The appellant filed the present appeal on July 4, 2017, within the time limit if the time taken to obtain a certified copy is excluded. The appellant claimed that the time taken in seeking remedy before another court should be excluded as per Section 14 of the Limitation Act. The Tribunal held that the delay was adequately explained, and the time taken before the High Court should be excluded, thus allowing the appeal to be filed within time.

2. Delay in filing the appeal before the Commissioner (Appeals):
Before the Commissioner (Appeals), the appeal was filed after a delay of 892 days. The appellant attributed this delay to the counsel entrusted to file the appeal. The appellant stated that they were informed by the counsel that the appeal had been filed, but later discovered that it was not. An affidavit from the counsel affirmed that the appeal was drafted but not filed due to the clerk's negligence. The Tribunal noted that while the delay was due to the advocate's office, the appellant was also negligent. However, in the interest of justice, the Tribunal condoned the delay subject to a cost of ?5000 to be deposited in the Prime Minister's National Relief Fund within six weeks.

3. Condonation of delay application:
The Tribunal, considering the explanations provided by the appellant and the circumstances surrounding the delay, decided to condone the delay in filing the appeal before the Commissioner (Appeals) upon payment of a specified cost within a stipulated time frame. This decision was made in the interest of justice, balancing the negligence of the appellant with the circumstances leading to the delay.

4. Transfer of appeal to Division Bench for final hearing:
Due to the classification of service being in dispute in the appeal, it was transferred to a Division Bench for final hearing. The date for the final hearing was fixed, and the issue was noted to be similar to a previous case, Final Order No.70559/2017 in the case of Gambhir Construction Company. The transfer to the Division Bench ensured a thorough examination of the classification issue.

5. Classification of service in dispute:
The issue of classification of service was highlighted in the appeal, leading to its transfer to a Division Bench for a final hearing. The appellant and the counsel pointed out similarities with a previous case, indicating the need for a detailed review of the classification issue. The final hearing was scheduled, subject to compliance with the necessary procedures.

In conclusion, the Tribunal addressed the delays in filing the appeal before both the Tribunal and the Commissioner (Appeals), condoning the delay in the latter case. The appeal was transferred to a Division Bench for a final hearing due to the classification of service being in dispute, ensuring a comprehensive examination of the issue.