2010 (3) TMI 254 - AT - Service Tax

Delay in filing the appeal- Delay has occurred because the appeal papers which were prepared by the learned advocate were sent by e-mail to the manager who was looking after this work. But, manager s mother had fallen ill and the manager proceeded on leave without taking further action on the e-mail sent by the learned advocate. Thereafter, the manager resigned and the director submitted the appeal before Commissioner (Appeals). The Commissioner (Appeals) has taken a view that it was the director, who signed the appeal and therefore the presence or absence of the manager is not an appropriate ground for condonation of delay. Held that- the explanation given by the appellant company is reasonable. We, therefore, feel that the delay in filing the appeal should have been condoned.

Summary

Issues: Condonation of delay in filing appeal, Stay application, Early hearing application, Merits of the appeal

Condonation of Delay in Filing Appeal:
The appellant's appeal was rejected by the Commissioner (Appeals) due to the non-condonation of an 84-day delay in filing the appeal. The appellant filed a stay application against this order and also applied for early hearing of the stay application due to coercive recovery actions by the department. The Tribunal noted that the Commissioner (Appeals) did not pass an order on the merits of the case but rejected the appeal solely based on the delay issue. The Tribunal agreed with the appellant's advocate that if the delay is condoned, the matter would need to be remanded; otherwise, the appeal itself would be rejected. Consequently, with the consent of both parties, the Tribunal decided to take up the appeal for decision without waiting for the delay condonation decision.

Stay Application and Early Hearing Application:
The appellant filed a stay application alongside the appeal, seeking relief from coercive recovery actions. The Tribunal observed that since the stay application and the early hearing application were considered together, the early hearing application became redundant. The Tribunal directed the Commissioner (Appeals) to consider both the appeal and the stay application on their merits.

Merits of the Appeal:
The appellant provided a reasonable explanation for the delay in filing the appeal, attributing it to the illness of the manager to whom the appeal papers were sent via email. The manager subsequently went on leave without taking further action, leading to a delay in submission. The Commissioner (Appeals) had held that the director submitting the appeal, not the absent manager, was responsible for the delay. However, the Tribunal found the appellant's explanation valid, considering the manager's role in the company's affairs. Consequently, the Tribunal directed the Commissioner (Appeals) to review the appeal and the stay application on their merits, emphasizing that the delay should have been condoned.

In conclusion, the Tribunal disposed of the appeal by remanding it back to the Commissioner (Appeals) for a decision on the merits, emphasizing the need to consider both the appeal and the stay application in light of the reasonable explanation provided for the delay in filing the appeal.