2013 (1) TMI 49 - AT - Service Tax

Includability or non includability of reimbursement charges in the gross value for determination of service tax liability - appeal dismissed on ground of delay of 10 days - Held that - As decided in Improvement Trust Ludhiana Vs. Ujagar Singh & Ors 2010 (6) TMI 660 - SUPREME COURT that unless malafides are writ large on the conduct of the party delay should be condoned. In the legal arena an attempt should always be made to allow the matter to be contested on merits rather than to throw it on such technalities. Thus in the present case appeal should have been decided on the merits by the first appellate authority. Dismissing the appeal by not condoning the delay of 10 days in filing the appeal before the first appellate authority the said dismissal is not in consonance of the law as has been settled by the apex court above - delay should have been condoned by the first appellate authority and the matter should have been decided on merits.

Summary

Issues:
- Stay petition for waiver of pre-deposit of amount, interest, and penalties under Section 76, 77 & 78.
- Includability or non-includability of reimbursement charges in the gross value for service tax liability determination.
- Delay in filing appeal before the first appellate authority and the condonation of the same.

Analysis:
1. The stay petition was filed seeking the waiver of pre-deposit of a specific amount along with interest and penalties under relevant sections. The main issue in this case revolved around whether the reimbursement charges should be included in the gross value for determining service tax liability.

2. The first appellate authority did not decide on the merits of the issue but dismissed the appeal due to a delay of ten days in filing the appeal. The authority held that the appellant did not provide justifiable reasons for the delay, leading to the dismissal of the appeal.

3. The judge observed that the delay of 10 days in filing the appeal could have been condoned by the first appellate authority. Referring to legal precedents, the judge emphasized that delays should generally be condoned unless malafides are evident. The judge criticized the dismissal of the appeal based on the delay and highlighted the importance of allowing matters to be contested on their merits rather than technicalities.

4. Consequently, the judge set aside the impugned order and remanded the matter back to the first appellate authority for reconsideration. The first appellate authority was instructed to reexamine the issue while adhering to the principles and directions established by the apex court regarding the condonation of delay. The judge emphasized the need for the first appellate authority to follow the principles of natural justice in reaching a conclusion.

5. In conclusion, the stay petition and appeal were disposed of, with the judge reinstating the appeal for reconsideration by the first appellate authority. The decision highlighted the importance of allowing appeals to be decided on their merits and ensuring adherence to legal principles in the process.