2012 (12) TMI 516 - AT - Service Tax

Condonation of delay - Non service of impugned order in appeal - Held that - Commissioner (Appeals) has rejected the appeal on the ground of delay in filing the appeal before him but delay was for 32 days, which was within condonable limit of three months. As before the Commissioner (Appeals) the appellants have filed an application seeking condonation of delay along with an affidavit and medical certificate, which was not considered by the him and the condonation delay application was rejected for non-submission of medical certificate. Commissioner (Appeals) has also not decided the case on merit. Commissioner (Appeals) order is set aside and the matter is remanded back to re-consider condonation of 32 days delay taking into consideration the affidavit and medical certificate annexed to the COD application - in favour of assessee by way of remand.

Summary

Issues:
Delay in filing appeal before the Commissioner (Appeals), rejection of appeal on grounds of delay, condonation of delay application, consideration of affidavit and medical certificate, appeal remanded for re-consideration.

Analysis:
The judgment deals with an application for condonation of delay of 170 days in filing an appeal before the Commissioner (Appeals). The applicant/appellant contended that the order-in-appeal was passed by the Commissioner (Appeals) on a specific date but was not dispatched to them. The Department provided a letter stating that the order was dispatched but returned, and no evidence of service was found. The applicant claimed they were informed about the order by the Range Supdt. on a later date and requested a certified copy, which they did not receive. Despite filing an appeal before the Tribunal, the delay was not condoned by the Commissioner (Appeals).

The Tribunal considered the reasons given by the applicant for the delay in filing the appeal as sufficient for condonation. The Miscellaneous Application for condonation of delay was allowed. The Tribunal further decided to dispose of the appeal at that stage with the consent of both parties and without the requirement of pre-deposit.

Upon reviewing the case, the Tribunal found that the Commissioner (Appeals) had rejected the appeal based on a 32-day delay, which was within the condonable limit of three months. The appellants had filed an application for condonation of delay with an affidavit and medical certificate, which was not considered by the Commissioner (Appeals). The Commissioner's decision was set aside, and the matter was remanded for re-consideration. The Commissioner was directed to review the condonation of the 32-day delay, taking into account the affidavit and medical certificate submitted with the application. The Tribunal emphasized providing a reasonable opportunity for the appellant to be heard, keeping all issues open. The appeal was allowed by way of remand, and the stay petition was disposed of accordingly.