2016 (12) TMI 1335 - AT - Service Tax

Restoration of appeal - time bar - Held that - the delay in filing the appeal before learned Commissioner (A) was not intentional and deliberate and therefore, the delay in filing the appeal condoned before the learned Commissioner (A) and impugned order set aside - Commissioner (A) directed to decide the appeal on merit after affording an opportunity of hearing to the appellant - appeal restored - delay condoned - decided in favor of appellant.

Summary

Issues:
- Appeal against dismissal of appeal as time-barred
- Condonation of delay in filing appeal

Analysis:

Issue 1: Appeal against dismissal of appeal as time-barred
The appellant, engaged in providing marketing support services to group companies outside India, exported services without payment of service tax by utilizing CENVAT credit. A show-cause notice rejecting the refund claim was issued due to alleged failure to fulfill obligations under Export of Service Rules. The Order-in-Original was received late, leading to a delay in filing an appeal before the Commissioner (A). The Commissioner (A) dismissed the appeal as time-barred, not going into the merits of the case. The appellant contended that the delay was inadvertent and should have been condoned. Citing a Karnataka High Court decision, the appellant argued that a liberal approach should be adopted in condoning delays in filing appeals. The Tribunal, considering the circumstances, held that the delay was not intentional and deliberate. Consequently, the impugned order was set aside, directing the Commissioner (A) to decide the appeal on merit after providing an opportunity for a hearing and document submission.

Issue 2: Condonation of delay in filing appeal
The crux of the matter revolved around the delay in filing the appeal before the Commissioner (A). The appellant argued that the delay of 88 days was not deliberate but caused due to the Order-in-Original being sent to the wrong department. The appellant emphasized that the delay was within the condonable limit and should have been excused. Relying on the Karnataka High Court's decision in a similar case, the appellant urged a liberal approach in condoning the delay, emphasizing that appeal is a substantive right and should not be dismissed on technical grounds. The Tribunal, considering the principles laid down by the High Court, agreed that the delay was not intentional and warranted condonation. Consequently, the delay was condoned, and the impugned order was set aside for a fresh consideration on merit by the Commissioner (A) after providing a fair opportunity for the appellant to present their case.

In conclusion, the Tribunal allowed the appeal, emphasizing the importance of a liberal approach in condoning delays in filing appeals and ensuring that substantive rights are not curtailed on technical grounds. The decision highlights the significance of considering the circumstances leading to delays and the need to provide fair opportunities for parties to present their case on merit.