2018 (7) TMI 335 - AT - Service Tax

Condonation of delay in filing appeal - case of appellant is that the pendency of the same issue before various judicial forums delayed the filing of the present appeal - Held that - When the assessee-appellant could get into litigation by instructing its Counsel to file appeals after appeals up to the High Court, it cannot be assumed that it did not think of filing appeal even on merits nor that the assessee could plead ignorant when it comes to the filing of appeal on merits instead agitating before various forums. - Evidently, the delay in the case on hand is inordinate and the explanation sought to be offered is not satisfactory or convincing. Having pursued appeals on the validity of declaration under VCES, nothing prevented the appellant who kept on filing appeals under VCES to file an appeal even on merits and this approach is nothing but elective and also indicates that the order impugned has been now appealed to this forum was at that stage accepted by them. The application seeking condonation of delay is rejected - appeal dismissed.

Issues:
Delay in filing the appeal, Condonation of delay, Validity of rejection of VCES application, Appeal under Section 85 of the Act, 1994, Dismissal of appeal by Commissioner (Appeals), Appeal before the Tribunal, Condonation of delay application, Arguments for condonation of delay, Rejection of condonation of delay application, Dismissal of appeal without going into merits.

Analysis:

1. Delay in filing the appeal and Condonation of delay:
The appellant filed an appeal with a delay of 1553 days and sought condonation for the same. The delay was attributed to pursuing the Voluntary Compliance Encouragement Scheme (VCES) application, subsequent rejection, and legal proceedings challenging the rejection. The delay was considered inordinate, and the appellant provided reasons for the delay, including pursuing the matter through various judicial forums.

2. Validity of rejection of VCES application:
The appellant challenged the rejection of the VCES application before the Commissioner (Appeals) and subsequently through a writ petition before the Hon'ble High Court. The High Court held that the order of the Commissioner (Appeals) was appealable, leading to a direction for the appeal's disposal in accordance with the law.

3. Appeal under Section 85 of the Act, 1994:
The primary issue involved in the legal proceedings was whether an appeal under Section 85 of the Act, 1994 would lie against the order of rejection or declaration passed by the designated authority under Section 106(2) of the Act, 1994. The High Court's decision clarified the appealability of the Commissioner (Appeals) order, leading to further legal actions by the appellant.

4. Dismissal of appeal by Commissioner (Appeals) and Appeal before the Tribunal:
The Commissioner (Appeals) rejected the appeal filed by the appellant, leading to an appeal before the Tribunal. The Tribunal dismissed the appeal after considering the facts and submissions presented by the appellant's counsel.

5. Condonation of delay application and Arguments for condonation of delay:
During the proceedings, the appellant's counsel relied on legal precedents to support the condonation of delay, emphasizing the genuineness of the appellant's actions and the absence of intentional delay. The counsel presented arguments based on previous court decisions to support the appellant's case.

6. Rejection of condonation of delay application and Dismissal of appeal without going into merits:
Despite the arguments presented by the appellant's counsel, the Tribunal was not convinced by the explanation offered for the delay. The Tribunal noted that the delay was inordinate and the appellant failed to establish vigilance or alertness in pursuing the appeal. Consequently, the application seeking condonation of delay was rejected, leading to the dismissal of the appeal without delving into the merits of the case.

Overall, the Tribunal's decision was based on the lack of satisfactory explanation for the delay in filing the appeal, highlighting the importance of diligence and timely legal actions in such matters. The legal precedents and arguments presented by the appellant's counsel were carefully considered but deemed insufficient to warrant the condonation of the delay in this case.

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