2016 (12) TMI 1184 - AT - Service Tax

Condonation of delay of 10 days in filing appeal - delay due to their authorised signatory, on continuous tour - Held that - by taking a liberal approach, and considering that the delay in filing the appeal before learned Commissioner (A) was not intentional and deliberate - delay condoned.

Summary

Issues:
Appeal against rejection of refund claim due to delay in filing appeal within condonable limit.

Analysis:
The appellant provided Business Auxiliary Services and Information Technology Software Services, registered under Software Technology Park of India. The appellant filed a refund claim for unutilised CENVAT credit, but a show-cause notice was issued proposing to reject the claim due to lack of nexus with output services. The Assistant Commissioner partially sanctioned the refund but rejected a balance amount. The appellant filed an appeal with the Commissioner (A) after a delay of 10 days, citing the authorised signatory's continuous tour as the reason. The Commissioner (A) dismissed the appeal, deeming the delay non-condonable. The appellant contended that the delay was unintentional and should have been condoned, citing a Karnataka High Court case where delay was condoned due to communication issues within the company.

The Tribunal, after hearing both parties, noted that the delay in filing the appeal was not deliberate and intentional, attributing it to the authorised signatory's continuous tour. The Tribunal agreed with the appellant's argument that a liberal approach should be adopted in such cases. Citing the Karnataka High Court decision, the Tribunal emphasized that appeal is a substantive right and a narrow view should not lead to dismissal. Consequently, the Tribunal condoned the delay, set aside the impugned order, and directed the Commissioner (A) to decide the appeal on merit after providing an opportunity for a hearing and document submission.

In conclusion, the Tribunal allowed the appeal, considering the unintentional nature of the delay and the need for a liberal approach in such matters. The decision highlighted the importance of not dismissing appeals based solely on procedural delays, emphasizing the substantive right to appeal and the need for fair consideration of all circumstances.