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2009 (2) TMI 394 - AT - Service TaxPenalties- Assessee had filed an appeal before Commissioner (Appeals) after delay of 49 days beyond period of 90 days allowed in terms of proviso to section 85. in support of cause of delay an affidavit of an employee of assessee was filed wherein said employee stated that due to some urgent personal work he could not attend office and during rearrangement of files he found that order in original was not attended and therefore said appeal was not filed within time. Commissioner (Appeals) dismissed appeal on the ground that assessee had not justified delay in filing appeal. whether Commissioner (Appeals) ought to have condoned delay of 49 days in filing appeal and disposed of appeals on merits as reason given in affidavit was convincing. Held-yes.
Issues: Stay petition for waiver of pre-deposit of Service Tax, interest, and penalties under sections 76 and 78; Delay in filing the appeal before the Commissioner (Appeals).
The judgment pertains to a stay petition filed for the waiver of pre-deposit of Service Tax, interest, and penalties under sections 76 and 78. The Judicial Member noted that the appeal could be disposed of promptly as the issue was narrow. The appellant's appeal had been dismissed by the Commissioner (Appeals) due to a delay of 49 days in filing the appeal, which exceeded the prescribed period of 90 days under the Finance Act. The appellant had submitted an affidavit explaining the delay, attributing it to urgent personal work and the age-related circumstances of the individual responsible for the oversight. Upon careful consideration, the Tribunal found the reasons provided in the affidavit to be convincing. The Tribunal observed that the delay was justifiable given the circumstances, especially considering the age of the individual responsible for the oversight. Consequently, the Tribunal held that the delay of 49 days in filing the appeal should be condoned. The matter was remitted back to the Commissioner (Appeals) to restore the appeal to its original status and decide on the merits of the case. As a result, the stay application and appeal were disposed of accordingly, emphasizing the need for a fair assessment of the reasons behind the delay in filing the appeal before drawing conclusions.
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