2010 (1) TMI 419 - AT - Service Tax

Limitation- The appellant could have filed appeal by 21.7.2008. But for certain difficulty they were prevented to file the appeal before that date. Accordingly appeal was filed on 27.8.2008. Condonation of such delay was within discretionary power conferred on Commissioner (Appeals). Held that- appellant having cause for condonation of delay. Matter remanded to Commissioner (Appeals) for passing appropriate order.

Summary

Issues:
1. Condonation of delay in filing appeal before the first appellate authority.
2. Discretionary power of the Commissioner (Appeals) in condoning delay.
3. Justification for delay in filing appeal.
4. Consideration of delay in the context of service tax demand and penalty.
5. Applicability of the Apex Court decisions in similar cases.
6. Remitting the matter back to the Commissioner (Appeals) for reconsideration.

Detailed Analysis:
1. The appellant filed an appeal seeking remedy against an order of adjudication received on 22.4.2008, but the appeal was submitted on 27.8.2008, beyond the usual deadline of 21.7.2008. The appellant requested condonation of the delay, citing difficulties preventing timely filing. The appellant emphasized that the delay was not deliberate and sought to avoid prejudice by having the appeal heard. The length of delay was deemed immaterial, with the cause of delay being the crucial factor for consideration, as per the Supreme Court precedent in N. Balakrishanan vs. M.Krishnamurthy-2008 (228) ELT 162 (SC).

2. The delay in filing the appeal was not adequately explained before the first appellate authority, leading to the non-exercise of discretionary power by the authority. Consequently, the first appeal was dismissed on the limitation issue, leaving no room for the Tribunal to admit the appeal. The respondent highlighted the routine delay by the appellant in this matter.

3. Upon hearing both sides and reviewing the records, the Tribunal proceeded to assess the situation.

4. The Tribunal reviewed the order passed by the Commissioner (Appeals) on 23.7.2008, which rejected the appeal due to the delay in filing. The Commissioner held that mere delay in receiving the order being appealed did not justify condonation. Recognizing the significant service tax demand and penalties faced by the appellant, the Tribunal emphasized that justice should not be compromised due to technicalities of delay.

5. Relying on the Supreme Court decisions in Balakrishanan vs. M.Krishnamurty-2008 (228) ELT 162 (SC) and Mst Katji and others (1987 (28) ELT 185 (SC)), the Tribunal concluded that the appellant's appeal should not be dismissed at the initial stage of justice. Therefore, the matter was remitted back to the Commissioner (Appeals) for a reconsideration of the delay in filing the appeal, in line with the Supreme Court's directives.

6. In light of the above considerations and following the guidance of the Apex Court decisions, the Tribunal disposed of the stay petition, delay condonation application, and appeal, remanding the matter to the Commissioner (Appeals) for further review and appropriate orders.