2020 (8) TMI 78 - AT - Service Tax

Condonation of delay of 289 days in appeal before the tribunal and delay of 24 days before the commissioner (appeals) - The company were under liquidation proceedings - 100% EOU Software Technology Park Scheme - refund of input service tax credit used in the export of output services - October to December 2013 - HELD THAT - the delay in filing the appeal has been satisfactorily explained. After going through the grounds of appeal, I find that there is no intentional and deliberate delay in filing the appeal and the delay occurred on account of the reasons stated in the application which is satisfactorily explained. In view of this, I condone the delay by allowing the COD application. Delay of 24 days before the commissioner (appeals) - Held that - The Department has not brought any evidence on record to prove that the Order-in-Original No. 54/2016 dated 18/03/2016 passed by the Assistant Commissioner of Central Tax, Bangalore was received by the appellant but the respondent has only proved the dispatch of the Order-in-Original and has not proved the receipt of the same. Moreover, the company during the relevant period was passing through a difficult phase of their business and was suffering loss of business and many employees were left the service of the company and there was relocation of the company s premises and shifting of various assets and also the company was going through the voluntarily liquidation process. The rejection of the appeal by the learned Commissioner (Appeals) is not sustainable in law - the delay of 24 days in filing the appeal before the Commissioner (Appeals) is condoned and the matter remanded back to the Commissioner (Appeals) with a direction to decide the same on merit within one month after receipt of the certified copy of this order, after following the principles of natural justice and after affording adequate opportunity to the appellant.

Summary

Issues:
Delay in filing appeal before Commissioner (Appeals) and condonation of delay.

Analysis:
The judgment dealt with an application seeking condonation of delay of 289 days in filing an appeal. The appellant, operating under the EOU Software Technology Park Scheme, had filed a refund claim for input service tax credit used in exporting output services for the period October to December 2013. After the Order-in-Original rejecting the refund, the appellant filed an appeal before the Commissioner (Appeals), which was rejected as time-barred. The appellant cited reasons beyond their control for the delay, including a business transformation, loss of staff, and relocation of premises. The Tribunal, considering the affidavits and lack of intentional delay, condoned the delay and proceeded to decide the appeal.

Regarding the second issue, the appellant, a 100% EOU, faced challenges in receiving the Order-in-Original rejecting the refund claim. The delay in filing the appeal before the Commissioner (Appeals) was explained by the appellant due to the Senior Finance Manager's oversight and the difficult phase the company was undergoing, including business losses and liquidation proceedings. The Commissioner (Appeals) dismissed the appeal and the condonation application, assuming receipt of the Order-in-Original. The Tribunal found no evidence of receipt, acknowledged the company's hardships, and concluded that the rejection of the appeal was unjust. The Tribunal, therefore, condoned the delay of 24 days and remanded the matter back to the Commissioner (Appeals) for a decision on merit within a specified timeframe.

In both instances, the Tribunal emphasized the need for a liberal approach in condoning delays, considering the circumstances and reasons presented by the appellant. The judgments cited by the parties were reviewed, and the Tribunal focused on the lack of evidence of receipt of crucial documents, the company's operational challenges, and the principles of natural justice. Ultimately, the Tribunal upheld the importance of fairness and reasonable justification in addressing delays in legal proceedings.