2021 (9) TMI 572 - AT - Service Tax

Condonation of delay of 335 days in filing the appeal - reasonable explanation provided or not - failure on the part of the receipt clerk in placing the envelope sent by speed post before the officer concerned - HELD THAT - It transpires in the present case that as soon as the copy of the order was provided by the Department to the appellant on 09.07.2020, the appeal was filed on 20.08.2020. In the present case, it is seen that though the appellant had sent letters to the department on 08.01.2020 and 02.03.2020 to provide a copy of the order but it was provided only on 09.07.2020. The records indicate that when the order was received from the department on 09.07.2020, the appeal was filed in less than two months on 20.08.2020 - the averments made in the delay condonation application and the submissions advanced by learned Counsel for the appellant satisfies that the appellant has satisfactorily explained the reasons for not filing the appeal within the stipulated time. The delay having been satisfactorily explained, needs to be condoned and the application is allowed.

Summary

Issues: Delay in filing appeal, condonation of delay

The judgment deals with a delay of 335 days in filing an appeal, leading to a delay condonation application. The appellant received the order on 28.06.2019, but due to the receipt clerk's failure to deliver it to the concerned officer, the appeal could not be filed within the stipulated time. The appellant learned about the order through a phone call from the department for dues recovery. Subsequently, the appellant requested the original order from the Commissioner (Appeals) and filed the appeal on 20.08.2020 after receiving the order on 09.07.2020. The appellant's HR Head acknowledged the mistake and took steps to prevent future occurrences. The appellant argued that the delay was due to the clerk's error and should be condoned.

The key issue for consideration was whether the delay in filing the appeal should be excused due to the receipt clerk's failure to deliver the order promptly. The Department opposed the delay condonation, citing the substantial delay of 335 days and relying on previous tribunal decisions emphasizing the importance of due diligence in litigation. The Department argued that the clerk's mistake should not be a valid reason for condoning the delay. The Tribunal examined the facts and previous decisions to determine if the delay was satisfactorily explained.

The Tribunal acknowledged that the appellant's delay was due to the clerk's failure to promptly deliver the order to the concerned officer. However, it noted that once the appellant received the order on 09.07.2020, the appeal was filed within two months on 20.08.2020. The Tribunal considered the appellant's actions in requesting the order and promptly filing the appeal after receiving it. Referring to previous tribunal decisions, the Tribunal highlighted the importance of due diligence in litigation and concluded that the appellant had satisfactorily explained the delay. Consequently, the Tribunal allowed the delay condonation application and directed the office to assign a regular number to the appeal.

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