2009 (6) TMI 425 - AT - Service Tax

Condonation of delay Limitation The Appellant submits that the delay has occurred due to the fact that there was misplacement of the Order-In-Original by the counsel. In this case Tri-(Del.)-held that the law is settled by the Hon ble Supreme Court in the case of N. Balakrishnan v. M. Krishnamurthy - 2008 (228) E.L.T. 162 (S.C.) as to that for a mistake due to advocate, the assessee should not be put to hardship by way of rejection of his appeal, having not filed within time. Accordingly, it was considered opinion, that in the facts and circumstances of this case, and the explanation given by Counsel appearing, the application for the condonation of delay needs to be allowed.

Summary

Issues: Delay in filing appeal before the Tribunal.

Analysis:
The case involved an application for condoning an 86-day delay in filing an appeal before the Tribunal. The delay was attributed to the misplacement of the Order-in-Original by the Counsel representing the appellant. The Counsel filed an affidavit explaining the sequence of events leading to the delay. The affidavit detailed the receipt of the order, subsequent missing of the certified copy from the typing center, efforts to obtain a new copy, and the eventual filing of the appeal. The Counsel argued that the delay was not due to negligence but a genuine error on their part. The Counsel emphasized that the appellant should not suffer due to the Counsel's mistake.

The JCDR representing the Revenue contested the adequacy of the Counsel's affidavit, claiming discrepancies in the dates provided and questioning the justification for the delay. However, the Tribunal examined the submissions from both sides and reviewed the records. It noted that the impugned order was received on time by the appellant, who promptly provided a copy to the Counsel. The Tribunal acknowledged that the delay was a result of mishandling by the Counsel's office during the appeal preparation process. Relying on legal precedent, the Tribunal highlighted that an appellant should not face adverse consequences for a Counsel's mistake. Citing the Supreme Court's decision in N. Balakrishnan v. M. Krishnamurthy, the Tribunal emphasized that appeals should not be rejected solely due to filing delays caused by the Counsel.

Consequently, the Tribunal accepted the explanation provided by the Counsel and decided to condone the delay. The Tribunal referenced the settled legal principle that an appellant should not be penalized for a Counsel's error. The application for condonation of delay was allowed, and the Tribunal directed the registry to list the stay application for further proceedings. The judgment was pronounced on June 30, 2009, in open court by the Tribunal members T.K. Jayaraman and M.V. Ravindran.