2022 (6) TMI 163 - AT - Service Tax

Recalling of order - Matter was heard ex-parte - Condonation of delay in filing present application - sufficient compliance of the provisions of Section 37C(1)(a) of Central Excise Act 1944 or not - Restoration of appeal under Rule 41 of CESTAT Rules 1982 - HELD THAT - In the present application, appellant has taken the plea of change of address in the year 2012-13 itself. The perusal of the appeal shows that the address given in the appeal is the one which is mentioned to have been closed but on the entire record there is no information provided by the appellant about the closure of its registered premises. The notices have rightly been issued by the department / registry at the available addresses. Since appellant was aware of all the proceedings, it was his duty to follow up his appeal. The appeal remained pending before this Tribunal since the year 2012 to the year 2017. The entire application is miserably silent about any effort of the appellant to enquire about the status of his appeal. The said conduct of the appellant is an outcome of absolute negligence and omission of the act what appellant was supposed to perform after filing of his appeal during said period of five years. It stands clear that lack of bonafides and the apparent negligence on part of the party seeking relief is a significant and relevant fact to be considered while dealing with the situation as one in hand. Hon ble Apex Court in ESHA BHATTACHARJEE VERSUS MANAGING COMMITTEE OF RAGHUNATHPUR NAFAR ACADEMY AND OTHERS 2015 (1) TMI 1053 - SUPREME COURT has held that even the affidavit and supporting certificate may not merit consideration - the application in hand itself has been filed after substantial delay. The appellant is already been observed to be negligent and thus he is held to not to be entitled for the discretionary relief. In the given circumstances, under no stretch of imagination there could be a justification to file an application at the sweet will of the applicant. Further, as per applicant himself, the Department has already acted upon the final order and has issued a recovery notice to the appellant which is mentioned as the date of knowledge of appellant about the impugned final order. But it is opined that since the Revenue has already acted upon the impugned final order and has already taken steps to implement the same there seems no justification nor even scope to recall such a final order especially when the proceedings were well in the notice of the applicant since first round of litigation in the impugned matter. There are no justification in the prayer of the appellant - application dismissed.

Summary

Issues:
Restoration of appeal arising from final order, Short payment of service tax, Non-receipt of hearing notices, Compliance of Section 37C(1)(a) of Central Excise Act 1944, Time limit for filing application for restoration, Lack of sufficient cause for non-appearance, Principles for condonation of delay, Negligence and lack of bonafides, Department's action on final order, Justification for restoration of appeal.

Analysis:

1. The judgment pertains to the restoration of an appeal arising from a final order related to the short payment of service tax for the period 2003-04 to 2006-07. The appellant sought restoration after the ex-parte order was set aside, citing non-receipt of hearing notices due to the closure of their office address and subsequent lack of awareness about the final order until 2021.

2. The appellant argued that the non-appearance was due to the failure to receive hearing notices, emphasizing the lack of compliance with Section 37C(1)(a) of the Central Excise Act 1944. They relied on previous decisions to support their case, highlighting the importance of sufficient cause for non-appearance before the authority.

3. The Department opposed the restoration application, pointing out the substantial delay in filing the application after the final order in 2017. They argued that the application should adhere to the time limit similar to the appeal filing period under Section 35C of the Central Excise Act. The Department also stressed the lack of sufficient cause for non-appearance on hearing dates, citing relevant case laws.

4. The Tribunal observed the history of the case, noting the appellant's previous appearances and the subsequent filing of the current appeal. The appellant's claim of a change in address in 2012-13 was scrutinized, with the Tribunal highlighting the lack of information provided regarding the closure of the registered premises and the appellant's duty to follow up on the appeal proceedings.

5. The Tribunal referenced the principles laid down by the Hon'ble Apex Court regarding condonation of delay, emphasizing the need for a liberal yet just approach. They highlighted factors such as negligence, lack of bonafides, and the party's conduct in determining the eligibility for discretionary relief in cases of delay.

6. Considering the lack of bonafides, negligence, and substantial delay in filing the restoration application, the Tribunal dismissed the appellant's plea for restoration. They emphasized that the Department had already acted upon the final order, and there was no justification to recall the order, especially given the appellant's awareness of the proceedings since the initial litigation.

7. The Tribunal distinguished the appellant's case from the decisions relied upon, concluding that there was no justification for restoration. They highlighted the substantial delay in the application, post-dating the covid pandemic, and dismissed the applications for restoration based on the lack of sufficient cause and the Department's prior action on the final order.

8. In conclusion, the Tribunal dismissed both applications for restoration, emphasizing the lack of justification based on the appellant's conduct, negligence, and the Department's prior actions on the final order. The judgment was pronounced on 20.05.2022.