2010 (4) TMI 543 - AT - Service Tax

Appellate Tribunal - Assessee sought stay on operation of first appellate order on ground that there was no quantification of demand made in that order. Held that - stay application was to be allowed. Assessee filed appeal to Tribunal in delaying 2 days because of ill health. Held that - delayed was to be condoned. Delay - Assessee s appeal before Commissioner (Appeals) was delayed by 5 months and 2 days. Commissioner dismissed the appeal on the ground of limitation. Held that - Matter was remanded back.

Summary

Issues:
1. Condonation of delay in filing appeal before the Tribunal.
2. Stay application due to absence of quantification of demand in first appellate order.
3. Discretionary power of the Commissioner (Appeals) to entertain appeal filed within the discretionary period.
4. Consideration of delay beyond the discretionary period by the Commissioner (Appeals) under the Service Tax law.

Analysis:
1. The appellant sought condonation of delay in filing the appeal before the Tribunal due to being bedridden after the initial submission was returned by the Registry. The appellant provided a medical certificate to support the claim of no deliberate delay or mala fide intention. The Tribunal, considering the circumstances, allowed the condonation of delay and proceeded with the stay application.

2. The appellant argued for a stay of the first appellate order due to the absence of quantification of demand. The Tribunal, after hearing both sides, decided to allow the stay application in light of the expressed difficulties and ordered accordingly.

3. The appellant contended that the Commissioner (Appeals) did not hear the appeal on merits despite the appeal being filed within the discretionary period under the Finance Act, 1994. The appellant highlighted the provision for discretionary power to entertain appeals filed within the further three-month period. The revenue agreed that the Commissioner (Appeals) could exercise discretion upon a proper application from the appellant explaining the delay.

4. The Tribunal noted a delay of 5 months and 2 days before the Commissioner (Appeals), which included the discretionary period of three months. Referring to the statutory provision, the Tribunal directed the appellant to make a proper application to the Commissioner (Appeals) explaining the delay beyond the initial three months. The Commissioner (Appeals) was instructed to consider the application, exercise discretion, condone the delay, and admit the appeal for hearing on merits, subject to any necessary pre-deposit orders.

In conclusion, the Tribunal addressed issues related to delay, stay applications, and the discretionary power of the Commissioner (Appeals) in entertaining appeals filed within the prescribed periods under the relevant statutory provisions. The judgments provided guidance on procedural aspects and considerations for condoning delays and ensuring proper hearing and consideration of appeals in accordance with the law.