2019 (4) TMI 902 - AT - Service Tax

Rectification of mistake - Condonation of delay of 319 days in filing appeal - Held that - The entire record attached to the COD application was considered while disposing of the impugned application which means even the case law of Mukesh Kumar 2014 (5) TMI 1055 - DELHI HIGH COURT was relied upon, being the content of the said application itself. It is thereafter that this Tribunal formed an opinion that in the given facts and circumstances of the present appeal, the financial difficulty in making the predeposit was held not to be a justifiable reason for condoning delay. To our opinion there is no error apparent, as alleged, on the record of this order. In the guise of error apparent on record, the reconsideration of the matter on merits is not permissible. ROM Application dismissed.

Summary

Issues:
- Application for rectification of mistake in the final order dated 18/04/2018.
- Delay in filing appeal due to financial difficulty.
- Consideration of case law regarding condonation of delay.
- Dismissal of the application for condonation of delay.

Analysis:

The judgment pertains to an application for rectification of mistake in the final order dated 18/04/2018. The appellant, represented by Shri Sameer Jain, contested the delay in filing the appeal due to financial difficulties. The appellant cited the case law of Mukesh Kumar vs. Commissioner of Customs, Delhi, emphasizing that financial problems can be a sufficient cause for condoning the delay in filing the appeal. The appellant argued that the financial difficulties faced by the applicant, a mere driver, led to the delay in arranging the pre-deposit amount. The appellant sought the recall of the order on the grounds of error apparent on record.

In response, the Departmental Representative, Shri R.K. Mishra, relied on a decision of the Mumbai Bench of the Tribunal in the case of Purshottam Somani and others vs. CC (Export), Nhava Sheva, where it was held that microscopic examination of the appellant's contentions is not required for seeking rectification in the order. The Departmental Representative also referenced the decision of the Hon'ble Apex court in the case of CCE, Belapur, Mumbai vs. RDC Concrete (India) P. Ltd. The Departmental Representative emphasized that the application for condonation of delay should be dismissed, citing the Tribunal's decision in the case of Vetri Impex vs. CC (Import & Export).

After hearing both parties and considering the arguments presented, the Tribunal, comprising Shri V. Padmanabhan and Ms. Rachna Gupta, deliberated on the matter. The Tribunal noted that the appeals against the impugned order were filed after a considerable delay of 319 days. The Tribunal opined that the reasons cited for the delay, specifically financial difficulty in making the pre-deposit, were not justifiable grounds for condoning the delay. Therefore, the Tribunal dismissed the appeals as time-barred due to insufficient reasons for condonation of delay, as per the order under challenge.

The Tribunal's analysis highlighted that the entire record attached to the condonation of delay application was considered while disposing of the application, including the case law of Mukesh Kumar. The Tribunal concluded that there was no error apparent on the record of the order. Additionally, the Tribunal referenced the decision of the Hon'ble Apex Court in the case of Honda Siel Power Products Ltd. vs. Commissioner of Income Tax, Delhi, emphasizing that the appeal itself cannot be reviewed under the guise of a rectification of mistake application.

In conclusion, the Tribunal, following the legal principles laid down in various decisions, dismissed the applications for rectification of mistake and condonation of delay. The Tribunal found no merit in the applications and proceeded to dismiss all three applications accordingly.