2019 (5) TMI 872 - HC - Service Tax

Condonation of delay of 350 days in filing an appeal - demand of service tax as per the proviso to Section 73 (1) of the Finance Act, 1994 - the appellate pleaded that his brother died leaving the family in distress and that therefore there were some difficulties in organizing the affairs of his business - Whether the Tribunal was justified in adopting a pedantic approach in the matter of condonation of delay? HELD THAT - We do not know how the death of the appellant s brother a few days before the receipt of the Order-in-Original could be a valid ground to reject the reasons for the delay. In any event, the Order-in- Original was dated 23.01.2015. The appellant s brother died on 13.02.2015. The appellant stated that the family was in a state of shock and that prompt action could not be taken - Once it is not disputed that the appellant s brother died after the order was passed but before it was received, we see no reason as to how the service of the copy of the order before the death of the appellant s brother would make things different. As a matter of fact, the appellant has already filed a VCES application and paid the entire service tax liability. Therefore, the refusal of the Tribunal to condone the delay appears to be contrary to law and unjustified. The delay in filing the appeal before the Tribunal is condoned - COD application allowed.

Summary

Issues involved:
Delay in filing an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), justification for condonation of delay, refusal of Tribunal to condone delay, validity of reasons for delay, substantial question of law regarding the Tribunal's approach in condonation of delay.

Analysis:
The judgment involves a case where the Assessee filed an appeal under Section 35G of the Central Excise Act, 1944, challenging the dismissal of an application for condonation of delay of 350 days in filing an appeal before the CESTAT. The Order-in-Original demanded service tax for taxable services provided by the appellant, along with interest and penalties under the Finance Act, 1994. The appellant's appeal and delay condonation application were dismissed by the Tribunal, leading to the current appeal.

The main issue raised in the appeal was whether the Tribunal was justified in adopting a pedantic approach in the matter of condonation of delay. The appellant cited the death of his brother as a reason for the delay, supported by a death certificate, which was not disputed. The Tribunal, however, held that since the brother's demise occurred before the receipt of the Order-in-Original, it was not a valid ground for condonation of delay. The High Court questioned this reasoning, noting that the brother's death happened after the order was passed but before it was received, making the timing of service of the order irrelevant to the delay.

The Court found the Tribunal's refusal to condone the delay contrary to law and unjustified, especially considering the appellant had already filed a VCES application and paid the entire service tax liability. Consequently, the question of law was answered in favor of the appellant, and the appeal was allowed. The delay in filing the appeal was condoned, directing the Tribunal to number the appeal and proceed with disposal according to the law. No costs were awarded, and any pending miscellaneous applications in the appeal were to be closed as a result of the judgment.