Chance of further appeal, Service Tax

[Nageswara Rao Sripada]

One of my clients neglected the OIO received for some reason or other. He filed appeal to Commissioner (Appeals) with condonation of delay of 597 days and it is evidently dismissed. Under wrong guidance, instead of going to CESTAT, he filed Writ Petition in HIGH COURT which was also dismissed on 18.09.2017. On merits, he stands a fair chance to win the case. But so far merits were not considered in any forum. Is the period spent in filing WP be relaxed if we file appeal to Tribunal now. I solicit your valuable advice to proceed further or not.

Posts / Replies

[KASTURI SETHI]

Yes. There is a ray of hope in CESTAT. There are a number of instances wherein CESTAT has condoned the delay of more than 4 or 5 years. It depends upon genuine reasons for delay. If your case is strong on merits or question of law is involved, CESTAT has power to condone such inordinate delay. In the interest of natural justice as mentioned above , you must fight the case.

[Accounting ServicesinIndia]

Yes, you must understand that the tax system in India is very flexible, but there is a big need to understand it, so to understand it you need to keep in touch with tax professionals any how.

[KASTURI SETHI]

Dear Querist, If you are able to prove your bona fides I am hopeful CESTAT will Condon the delay. CESTAT never sacrifices justice at the altar of time factor. If injustice has been done by the department, time factor will be relegated to the background. I am not speaking it is based on such case laws decided by CESTAT. Have trust in CESTAT.

[CS SANJAY MALHOTRA]

Appeal against Order of High Court lies with Apex Court now and CESTAT may refrain to overrule High Court as the matter has not been referred to CESTAT earlier, who could have as rightly said by Sh, Kasturi ji condoned the delay.

[KASTURI SETHI]

Sh.CS Sanjay Malhotra Ji,

Sir, Thanks for updating. Very happy to see you come back in this forum.

[MARIAPPAN GOVINDARAJAN]

The First Appellate Authority cannot condone the delay more than the day it permitted. You may file appeal to Tribunal to direct the First Appellate Authority to condone the delay. But the delay is 597 days for which you have to satisfy the Tribunal that you were prevented from filing of this file with this belated day.

[KASTURI SETHI]

Undoubtedly Sir.

[Ramaswamy S]

I agree with the views of other experts,

There has been a delay of 597 days in filing the first appeal (Commissioner Appeals).

Second there is a also a delay in filing the second appeal.

However, there is every possibility that the Hon'ble Tribunal can view the COD application otherwise for the reasons stated above.

Whether the Hon'ble HC while dismissing the WP, whether the HC has directed to approach CESTAT in the matter?

As stated there is a good chance on merits, would suggest to file a Writ Appeal. The legal luminary need to confirm whether such possiblity exists.

Regards

S.Ramaswamy

[Nageswara Rao Sripada]

With reference to Shri S.Rama Swamy's kind reply, I state that the Hon'ble HC while dismissing the WP, the HC has not directed to approach CESTAT in the matter. Then appeal with COD application to CESTAT will work out now? Iam in the verge of filiing appeal with COD to CESTAT now.

[KASTURI SETHI]

Dear Querist,. Every case has different facts and circumstances. So I am hopeful you will get the delay condoned provided you are able to prove your bona fides all the way. Wish you all the best ! Justice should not be sacrificed on the ground of time factor. There are cases where CESTAT had condoned delay of 1100 or 1200 days. That will surely help you.

[Ramaswamy S]

The appeal needs to be filed with COD. It is upto the judiciary (CESTAT or the HC) to decide. When the merits of the case is strong, all the plausible avenues to be explored.

As stated in my earlier view that I do agree with the views of other expert, however there is a caution and to be prepared for the contrary too.

Please do not lose heart and file the appeal with COD (CESTAT) as well as Writ Appeal.

Wish you all success and good luck.

Regards

S.Ramaswamy

[Nageswara Rao Sripada]

Thanks to one and all who have helped me with their valuable suggestions. I am making effort in CESTAT to come out with your kind pieces of advice.

[Ganeshan Kalyani]

Enriching discussion, infact.