2012 (11) TMI 952 - HC - Service Tax

Application for condonation of delay appeal against the order of CESTAT - Held that - the first order dismissing the appeal is only as a sequel to dismissing the application for condonation of delay in preferring the appeal and the appellant though had filed application seeking for condonation, that application was not prosecuted with diligence and therefore the Tribunal was left with no choice but to dismiss the application for condonation of delay and as a consequence dismissed the appeal and also the application for stay etc. The order passed by the Tribunal is not per se one dismissing the main appeal for non prosecution but is only a dismissal of the appeal as a consequence of dismissal of the application for condonation of delay. There was no valid or tenable appeal of the appellant which was an appeal which required or deserved attention under section 35C of the Act. It would have become a valid appeal only if the appellant should have succeeded in its efforts to get the delay in preferring the appeal condoned - appeal dismissed

Summary

Issues:
1. Condonation of delay in preferring the appeal before the Tribunal.
2. Dismissal of appeal by the Tribunal.
3. Validity of the order passed by the Tribunal.
4. Interpretation of section 35C of the Central Excise Act.
5. Consideration of substantial question of law by the High Court.

Condonation of Delay:
The appeal was filed under section 35G of the Central Excise Act against the Tribunal's order dated 15.11.2010, which dismissed the application for condonation of delay due to non-prosecution by the appellant's counsel. The Tribunal further rejected an application for restoration, leading to the dismissal of the main appeal and application for stay.

Dismissal of Appeal:
The appellant contended that the Tribunal erred in dismissing the appeal for non-prosecution. The counsel argued that the Tribunal should have considered the appeal on its merits as per section 35C of the Act. However, the Tribunal's order was a consequence of the dismissal of the application for condonation of delay, not a direct dismissal for non-prosecution.

Validity of Tribunal's Order:
The High Court found that the Tribunal's order was reasonable and not illegal. The Tribunal had adjourned the matter multiple times due to the absence of the appellant's representation, leading to the final dismissal of the appeal. The Court concluded that there was no valid appeal deserving attention under section 35C of the Act.

Interpretation of Section 35C:
The appellant argued that the Tribunal's order was unsustainable in law, citing a Supreme Court judgment regarding the interpretation of similar provisions in the Income-tax Act. However, the High Court clarified that for an appeal under section 35G to be entertained, it must involve a substantial question of law, which was not the case here.

Consideration of Substantial Question of Law:
The High Court emphasized that the appeal could not be admitted as the Tribunal's order, apart from being reasonable, did not suffer from any jurisdictional issues. The Court dismissed the appeal, stating that there was no valid appeal requiring consideration on its merits.