2016 (2) TMI 333 - AT - Service Tax

Condonation of delay - Period of limitation for filing an appeal - To be computed from the date of original order or from the date of modified order in original - Held that - The case laws relied upon by the appellant are not applicable to the present factual matrix as it was not a case of modification of a stay order passed by Commr (A). Secondly, the modification application before Commr (A) can not be considered as an appeal filed before a wrong forum. Filing such a modification of a final order before the first appellate authority has no legal backing at all. - delay of more than 1000 days in filing appeal before us, is not satisfactorily explained by the appellant. MA (COD) filed by the appellant is dismissed. - Appeal dismissed - Decided against the assessee.

Summary

Issues:
Condonation of delay in filing appeal before Appellate Tribunal CESTAT Kolkata.

Analysis:
The Appellant filed a Misc. Application for condonation of delay, Stay & appeal regarding OIA No. 32/ST/2010 passed by the first appellate authority. The appeal was filed after a delay of over 1000 days from the date of the original order. The Appellant argued that a modification application was filed before the first appellate authority and another application for expediting the modification application was also submitted. However, the delay was attributed to the non-reply by the office of the Commissioner (Appeal-I). The Appellant cited relevant case laws to support their arguments.

The Revenue contended that the modification application was filed two years after a recovery letter was sent to the Appellant. The delay was not adequately explained, and it was argued that the appeal and Stay application should be dismissed. After hearing both sides and reviewing the case records, the Tribunal considered whether the Appellant's delay in filing the appeal was justified. The first appellate authority had rejected the appeal as time-barred, and it was noted that the original order did not provide for seeking modification. The Appellant received multiple communications prompting action but only filed a modification application after a significant delay.

The Tribunal found that the case laws cited by the Appellant were not applicable to the present situation, as there was no provision for modification of the final order. The Tribunal emphasized that filing a modification application before the first appellate authority without pursuing the matter with the appropriate authority for over three years lacked legal basis. The delay of more than 1000 days in filing the appeal was deemed unsatisfactorily explained, leading to the dismissal of the Misc. Application, Stay application, and the appeal itself.

In conclusion, the Tribunal dismissed the Appellant's appeal due to the unjustified delay in filing and the lack of legal basis for seeking modification before the first appellate authority. The decision was based on the specific facts of the case and the absence of provisions allowing for such actions in the given legal framework.