2015 (3) TMI 918 - AT - Service Tax

Condonation of delay - Appeal filed in wrong office - whether on the basis of appeals claimed to be filed within time in another office due to oversight, could be a cause for getting their appeal hit by limitation - Held that - on the perusal of documents produced by the ld. Counsel, it is observed that he has fairly made a point that Order-in-Original was sent by speed post on 27/2/2013 and was received on 28/2/2013 by them and subsequently the appeal was filed on 23/4/2013. It was within the limitation period of 16 days. I have also perused the various judgments produced by him and find that in almost all the judgments, Tribunal has taken the view that merely because an appeal has been filed in a wrong forum due to oversight, the substantive right of appeal could not be affected and this aspect should be considered for calculating the limitation. I find that Tribunal has liberally viewed such delays keeping in view the interest of natural justice and has regularised such appeals without getting these affected by limitation. - matter is remanded back to the Commissioner (appeal) for de novo consideration within 3 months in view of above finding after providing fair opportunity of hearing and also opportunity for production of documents to both the sides. - Decided in favour of assessee.

Summary

Issues:
1. Appeal against Order-in-Appeal rejected on the ground of limitation.
2. Delay of 8 months in filing appeal.
3. Argument for condonation of delay due to oversight.
4. Consideration of appeal filed in wrong office.
5. Verification of dates and documents presented.

Analysis:

The appeal was filed against an Order-in-Appeal that was rejected due to being filed beyond the limitation period. The Commissioner (Appeal) held that the appeal was delayed by 8 months, and the period required for condonation exceeded 30 days. The appellant argued that the delay was due to oversight, as the Order-in-Original was despatched on 27/2/2013 and received on 28/2/2013, with the appeal filed on 23/4/2013 in the Assistant Commissioner's office by mistake. The appellant, through their counsel, cited cases where delays due to filing in the wrong office were not counted towards the limitation period, emphasizing the bonafide belief and lack of intimation of defects in the appeal.

The main issue for consideration was whether filing the appeal in another office due to oversight could justify condoning the delay and not render the appeal time-barred. The Tribunal, upon reviewing the documents and judgments presented, noted that the appeal was filed within the 16-day limitation period from the receipt of the Order-in-Original. The Tribunal also observed that previous judgments had taken a lenient view on such delays caused by oversight, prioritizing the substantive right of appeal and natural justice over technicalities of limitation periods.

The Deputy Registrar pointed out that the appeal was filed in a lower office that was not competent to receive the appeal, suggesting a need for verification of the dates and documents provided by the appellant's counsel. The Tribunal agreed that verification of the documents was necessary to ascertain the accuracy of the dates and determine if the appeal documents filed in the wrong office could be considered as filed in the correct office. Consequently, the matter was remanded back to the Commissioner (Appeal) for a fresh consideration within 3 months, ensuring a fair hearing and document production opportunity for both parties. The stay application was also disposed of in light of the above findings.