2019 (7) TMI 497 - AT - Service Tax

Restoration of appeal - service of order - Time limitation - condonation of delay of about 297 days in filing appeal - HELD THAT;- The order of the Hon ble Uttarakhand High Court, appears to have either not been brought to the notice of the Commissioner (Appeals), or the Commissioner (Appeals) failed to take notice of the same, as it appears from the impugned order-in-appeal. Further, this Tribunal also at the time of passing of the Final Order skipped to take notice of the order of the Hon ble Uttarakhand High Court, which was mentioned in para-3 of the statement of facts. Thus, it appears to be mistake of fact apparent on record, committed by this Tribunal, while disposing the appeal. From the order of the Hon ble Uttarakhand High Court, it is apparent that the Hon ble High Court granted indulgence, while relegating the matter to the appellate authority, to dispose of the appeal on merits. The ld. Commissioner (Appeals) is directed to hear the appeal on merits and pass a reasoned order in accordance with law - Appeal allowed by way of remand.

Summary

Issues: Appeal dismissed on limitation, non-compliance with High Court order, restoration of appeal

The judgment involves the dismissal of an appeal by the Commissioner (Appeals) due to a delay of 297 days from the date of receipt of the order-in-appeal. The appellant, a State Government Undertaking, had filed a writ petition before the High Court seeking condonation of delay, which was disposed of with directions to file the appeal within 30 days before the competent authority. The Tribunal initially dismissed the appeal, noting no error in the Commissioner's decision. Subsequent applications for restoration were also dismissed for non-compliance with the High Court order. However, in the present application, the Tribunal acknowledged its oversight in not considering the High Court order. It was found that both the Commissioner and the Tribunal had failed to take notice of the High Court's directions, which granted indulgence for the appeal to be considered on merits. As a result, the Tribunal allowed the miscellaneous application, modified the previous order, and remanded the appeal back to the Commissioner (Appeals) for a fresh hearing on merits, directing a reasoned order to be passed in accordance with the law. The appellant was instructed to appear before the Commissioner with a copy of the Tribunal's order to seek an opportunity for a hearing, and the miscellaneous application was allowed.