2018 (9) TMI 988 - AT - Service Tax

Condonation of delay in filing appeal - case of Revenue is that the reasons cited by the appellant in condoning such delay cannot be considered as sufficient cause that had prevented him from presenting the appeal within the period of 2 months against the order of the first adjudicating authority. Held that - It is a settled principal of law that appellant had to show sufficient cause that prevented him to prefer appeal within the stipulated period but sufficient cause is a question of fact and the same is dependent on various factors/ situations, sickness being one of such cause - Section 86 (7) dictates the Tribunal to follow the same procedure as it exercises and follows in hearing the appeals and making orders under Central Excise Act 1994 and the Central Excise Act vide Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation - Since this Appellate Tribunal cannot go beyond the order of the Commissioner (Appeals) to scrutinize the merit of the decision of the adjudicating authority, it is a fit case which necessitates re-adjudication by the Commissioner (Appeals) as under Section 35A (3), he is also empowered to make such further enquiry as may be necessary in order to pass such order as he may think proper and not to confine his views on the merits of the order of the adjudicating authority. The appeal is allowed and the delay of 28 days in filing appeal before the Commissioner (Appeals) is condoned.

Summary

Issues: Delay in filing appeal before Commissioner (Appeals), Change of authorized representative, Substantial justice vs. technical considerations, Merit of the decision, Re-adjudication by Commissioner (Appeals)

The judgment revolves around the issue of delay in filing the appeal before the Commissioner (Appeals). The appellant's appeal was dismissed due to a 28-day delay, with the Commissioner (Appeals) citing insufficient cause for the delay. The appellant argued that his Chartered Accountant failed to file the appeal on time due to the appellant's sickness, leading to a change in representation. The argument was challenged by the department, stating a lack of documentary evidence to support the claim. The Tribunal emphasized the need to show sufficient cause for the delay, considering sickness as a valid reason.

Regarding the change in authorized representative, it was noted that the appellant switched representatives due to the previous Chartered Accountant's failure to file the appeal within the stipulated period. The Tribunal acknowledged the appellant's sickness as a factor contributing to the delay and stressed the importance of substantial justice over technicalities in legal proceedings.

The judgment highlighted the principle that substantial justice should prevail over technical considerations when dealing with delays in legal matters. Citing relevant case laws, the Tribunal emphasized the importance of advancing substantial justice and adopting a liberal approach, especially in cases with minor delays. The judgment underscored the significance of considering prejudice to the opposite party in cases of substantial delays.

In terms of the merit of the decision, the Tribunal noted that the Commissioner (Appeals) did not discuss the tax liability of the appellant but rejected the appeal based on the limitation period. The Tribunal highlighted the need for the Commissioner (Appeals) to provide reasons and decisions on the merit of the appeal, as proposed in previous Supreme Court guidelines.

Due to the limitations on the Appellate Tribunal's authority to scrutinize the merits of the decision, the judgment called for re-adjudication by the Commissioner (Appeals) to conduct further inquiries and pass a proper order based on the observations made. Consequently, the appeal was allowed, and the delay in filing the appeal was condoned, remanding the matter back to the Commissioner (Appeals) for re-adjudication based on the outlined observations.