2018 (7) TMI 1536 - AT - Service Tax

Condonation of delay of 370 days in filing the appeal - case of appellant is that the delay was caused due to mentioning of wrong address in the order, due to which the order was not communicated to him, but was delivered to wrong address - Section 35(B)(3) of Central Excise Act, 1944 - Held that - As per section 35(B)(3) of Central Excise Act, 1944 the appeal has to be filed within 3 months from the date of communication of the order - Perusal of record shows that the appeal memo as was filed by the applicant before Commissioner (Appeals) bears the address of appellant being 1/12, Ranthambore Complex, M.P Nagar, Bhopal. Hence, the Supdt. Commissioner (Appeals) committed no mistake while delivering the O-I-A at the said address. It is also perused that 1/12, Ranthambore Complex, M.P Nagar, Bhopal is the address of Mr.Hariom Jatiya, who is none but the Managing Director of the applicant/appellant. The Subsequent plea of delay on account of correspondence for seeking clarification about order number also retains no significance, it merely being a typographical error. The reason taken in the application is not only held to be false, but is held to be misleading one. In the present case since the applicant/appellant was very much aware of the show cause notice served upon him and the subsequent adjudication, the benefit of discretionary relief cannot be extended in favour of the applicant/appellant - delay cannot be condoned - application for COD dismissed.

Summary

Issues: Condonation of delay in filing an appeal against an order of the Commissioner (Appeals)

Analysis:
1. The appellant sought condonation of a 370-day delay in filing an appeal against an order dated 12th January, 2017, issued by the Commissioner (Appeals). The appellant claimed that they did not receive the order due to it being wrongly addressed and returned to the CCE Office. The appellant became aware of the order through a letter dated 8th June 2017, which contained a wrong order number. After seeking clarification, it was confirmed that the correct order number was different, leading to the delay in filing the appeal. The appellant argued that the delay was due to a reasonable cause and requested the application to be allowed.

2. The Departmental Representative (D.R.) rebutted the appellant's arguments, stating that the reasons provided in the application were incorrect. The D.R. highlighted that the address mentioned in the appeal memo matched the address where the order was delivered. The D.R. contended that attributing the delay to a typographical error was unjustified and requested the application to be dismissed.

3. The Tribunal analyzed the case under section 35(B)(3) of the Central Excise Act, 1944, which mandates filing an appeal within 3 months from the date of order communication. The Tribunal found that the appellant's claim of not receiving the order due to a wrong address was false. The address mentioned in the appeal matched the appellant's Managing Director's address, who was authorized to represent the appellant in proceedings. The Tribunal also noted that the appellant had participated in previous proceedings and received notices at the same address, undermining the claim of non-receipt of the order.

4. The Tribunal emphasized that the delay justification based on seeking clarification about the order number was insignificant, considering it a typographical error. Referring to legal precedents, the Tribunal highlighted that condonation of delay requires genuine reasons and due diligence. The Tribunal concluded that the appellant was aware of the proceedings and should have inquired about the outcome, even if communication was not received. Misleading the court with incorrect facts and unjustified pleas undermined the appellant's claim for condonation of delay.

5. Consequently, the Tribunal dismissed the application and the appeal, stating that the appellant's conduct did not warrant discretionary relief. The decision was pronounced openly on 19th July 2018.