2020 (2) TMI 1170 - HC - Customs

Condonation of delay in filing appeal - service of order - application for the condonation of delay rejected stating that the Order-in-Appeal was despatched on 11.04.2014 through Speed Post and there is a huge delay of 4 1/2 years in filing the Appeal - HELD THAT - The learned Tribunal has not mentioned anything about the acknowledgment of the speed post containing Order-In-Appeal, to the Assessee. If the order would have despatched in 'Speed post with Acknowledgment Due', the Department ought to have produced the Acknowledgment Card bearing the signatures of the Assessee. The learned Tribunal only got satisfied with the fact that the Order-In-Appeal was sent to the Assessee through Speed Post and has dismissed the Application for Condonation of delay, without verifying the fact that the Order-In-Appeal has been received by the Assessee or not. Mere despatching of order does not imply the receipt of the same. If the Assessee would have received the order, it could have filed the Appeal in time. Therefore the learned Tribunal was not justified in dismissing the Application on the ground of limitation. Time and again, the Higher Constitutional Courts direct the learned fact finding Tribunals below not to be trigger-happy to dispose of the cases for default of appearance or on mere delay. Matter remanded back to the Tribunal for deciding the Appeal afresh on merits - appeal allowed by way of remand.

Summary

Issues:
1. Condonation of delay in filing an appeal before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT).
2. Dismissal of the application for condonation of delay by the Tribunal.
3. Lack of acknowledgment of receipt of the Order-In-Appeal by the Assessee.
4. Justification of dismissing the application on the ground of limitation.
5. Legal obligation of the Tribunal to decide the appeal on merits.

Analysis:

1. The Assessee filed an appeal against the order of the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) after a delay of 4 1/2 years. The Tribunal dismissed the application for condonation of delay due to the significant delay in filing the appeal. The Tribunal noted that the Assessee's plea that the department did not inform them about the appeal's status was not substantiated by the records, leading to the dismissal of the condonation application.

2. The counsel for the Assessee argued that the delay in filing the appeal was due to the Assessee receiving the Order-In-Appeal only after filing an RTI application. The Tribunal's rejection of the condonation application solely based on the delay was challenged. The counsel highlighted the lack of acknowledgment of the order by the Assessee and emphasized that the delay was justified due to the circumstances of receiving the order late.

3. The High Court observed that the Tribunal failed to consider whether the Assessee acknowledged the receipt of the Order-In-Appeal sent via Speed Post. The Court noted that the mere dispatch of the order does not imply its receipt by the Assessee. The lack of acknowledgment raised doubts about the actual receipt of the order by the Assessee, justifying the delay in filing the appeal.

4. The Court emphasized that the Tribunal should not dismiss appeals solely based on delay or default of appearance. The Tribunal's duty is to decide cases on merits, even in the absence of one party's assistance. Highlighting the importance of deciding cases on merits, the Court directed the Tribunal to reconsider the appeal on its substance rather than dismissing it on procedural grounds.

5. Consequently, the High Court set aside the Tribunal's order and remanded the matter back to the Tribunal for a fresh decision on the appeal. The Tribunal was instructed to decide the case on its merits in accordance with the law, emphasizing the importance of a substantive review rather than procedural technicalities.

In conclusion, the High Court allowed the Civil Miscellaneous Appeal, emphasizing the importance of deciding cases on their merits and directing the Tribunal to reconsider the appeal based on substantive grounds rather than procedural delays.