2019 (7) TMI 448 - HC - Service Tax

Condonation of delay in filing appeal - sufficient cause - Whether the Tribunal had failed in considering the question as to whether the delay could have been condoned in terms of awarding cost? - HELD THAT - We have to concur with the findings arrived by the Tribunal that the appellant had failed to offer any proper explanation with respect to the delay caused, which is convincing to the Appellate Tribunal. But at the same time, the Tribunal had failed to consider whether a lenient view could have been taken based on the settled legal principles. While considering whether there exists any 'sufficient cause' for condoning the delay, the Tribunal also could have considered about allowing the petitions on taking a liberal attitude, in terms of cost, in order to compensate the prejudices which may be caused to the opposite side. It is only just and proper to permit the appellant to pursue the appeals on merits after condoning the delay occurred. However, we take note of the fact that the prejudices which may be caused to the respondent Department need to be compensated in terms of cost. On a reasonable estimation, we think it appropriate to impose cost of ₹ 7,500/- each in the above cases, for condoning the delay. Appeal allowed - decided in favor of appellant.

Summary

Issues:
Appeal against common order of Customs, Central Excise & Service Tax Appellate Tribunal - Condonation of delay in filing appeals - Negligence and latches on the part of the appellant - Failure to offer proper explanation for delay - Consideration of condonation of delay in terms of awarding cost.

Analysis:
The appeals before the Kerala High Court challenged a common order of the Customs, Central Excise & Service Tax Appellate Tribunal, which dismissed the appeals due to delay in filing. The appellant failed to offer a convincing explanation for the delay, which was more than 2 1/2 years. The Tribunal found the appellant negligent despite being aware of the pending appeals and a related writ petition. The appellant's reasons for delay, such as being on a preaching service mission and his father's passing, were not deemed sufficient. The Tribunal dismissed the delay condonation applications and the appeals.

The appellant argued that the Tribunal should have been lenient in condoning the delay, citing settled legal principles. It was contended that courts should decide on merits rather than technicalities. The appellant's counsel suggested that even if the reasons for delay were not fully accepted, a lenient view should have been taken. The respondent's counsel highlighted the appellant's negligence and lack of proper affidavits.

The High Court found a question of law regarding whether the delay could have been condoned by awarding costs. While agreeing with the Tribunal's findings on the lack of a proper explanation for the delay, the High Court noted that the Tribunal failed to consider a lenient view based on legal principles. The High Court decided to permit the appellant to pursue the appeals on merits after condoning the delay, imposing a cost of ?7,500 each to compensate the respondent for any prejudices caused.

In conclusion, the High Court allowed the appeals, set aside the Tribunal's orders, and directed the appellant to pay costs within two weeks. The cases were remitted to the Tribunal for further proceedings. Failure to pay the costs would result in the impugned orders remaining in force. The High Court emphasized the need to compensate the respondent while allowing the appellant to pursue the appeals on merits.