2019 (6) TMI 1145 - HC - Central Excise

Condonation of delay in filing appeal - service of order - non-communication of the impugned order to the trustee - sufficient cause for condonation of delay or not - HELD THAT - Taking into consideration the circumstance that the delay is of only 102 days and such delay has been sufficiently explained in the affidavit of appellant's Trustee in support of the application for condonation of delay, we are of the opinion that the delay in institution of the appeal was required to be condoned in the facts of the present case. It does appear that there was a serious communication gap. Besides, as noted earlier, the appellant is a Charitable Trust. Upon cumulative consideration of all these factors coupled with the fact that the delay was of only 102 days, a case had been made out for condonation of delay. The delay of 102 days in instituting the appeal before the Tribunal was required to be condoned in the interests of justice by accepting the cause shown by the appellant as sufficient cause - COD application allowed - appeal allowed - decided in favor of appellant.

Issues:
Delay in filing appeal; Communication of order-in-appeal to Trustee; Condonation of delay; Validity of communication of order-in-appeal; Application for condonation of delay.

Analysis:
1. The appellant filed an appeal before the Tribunal challenging the order-in-appeal dated 13th February 2017, which was dismissed due to a delay of 102 days in filing the appeal. The appellant sought condonation of delay based on the plea of non-communication of the impugned order to the Trustee, raising a substantial question of law regarding the justification of dismissing the application for delay.

2. The Additional Director issued a show cause notice to the appellant for service tax liability, which was confirmed by the Additional Commissioner. The appeal before the Commissioner of Service Tax (Appeals-II) was dismissed, leading to the appeal before the Tribunal. The Tribunal refused to condone the delay, resulting in the present appeal challenging the Tribunal's decision.

3. The appellant argued that the order-in-appeal was received by the office staff but not communicated to the Trustee, who was authorized to make decisions. The appellant learned of the appeal's rejection only after a letter from the jurisdictional office, leading to the discovery of the order-in-appeal in office records. The appellant contended that service to the staff did not constitute valid service on the Trust, being a Charitable Trust, and cited relevant case laws to support the plea for condonation of delay.

4. The respondent defended the impugned order, stating that the order-in-appeal was duly served at the appellant's office address, with no requirement for personal service on the Trustee. The respondent argued that the affidavit supporting the condonation application lacked a sufficient cause for delay, supporting the Tribunal's decision to dismiss the appeal.

5. The Court held that valid communication of the order-in-appeal occurred when it was served at the appellant's office address, even if not personally to the Trustee. Despite the delay, the Court found the explanation plausible, considering the communication gap between office staff and the Trustee. The Court distinguished the present case from precedent, emphasizing the charitable nature of the Trust and the explanation provided for the delay.

6. Applying legal principles, the Court concluded that the delay of 102 days warranted condonation in the interest of justice. While rejecting the argument for mandatory service on Trustees in Trust cases, the Court accepted the appellant's explanation as sufficient cause for condoning the delay. The substantial question of law was answered in favor of the appellant, allowing the appeal and condoning the delay.

7. The Court directed the parties to appear before the Tribunal for fixing a date for the appeal's disposal on merits, with no order as to costs in the present case.

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