Power of CESTAT to condone delay in appeal before CST(A), Service Tax

[ROHIT GOEL]

Dear experts

Our client was delayed in filing of appeal before CST(A) by 150 days due to mistake of its employee. It submitted affidavit from proprietor and employee certifying such facts. However, the CST(A) did not condone the appeal being beyond condonable period of 30 days u.s 85 & relied upon SC order in case of Singh Enterprises. There are some judicial precedents where jurisdictional P&H HC as well as other High courts have condoned such delay under writ. However, is CESTAT empowered to condone such delay upon appeal? If yes, kindly cite some precedents.

Brief facts on merits: Appeal was against refund rejection order. Refund was rejected without any notice. Grounds for disallowance taken by AO have already been set aside by CST(A) in other periods where appeal was filed within time. So, our case is strong on facts if not for the delay.

Posts / Replies

[KASTURI SETHI]

SH. ROHIT GOEL JI,

I think the following case law suits to your client's case :- (There is a plethora of case laws on this issue.)

KERALA ROADWAYS LTD. Versus COMMISSIONER OF C.T. & C. EX., CALICUT - 2020 (2) TMI 1440 - CESTAT BANGALORE

[ROHIT GOEL]

Dear Kasturi sir,

Thanks for your reply. I believe you misunderstood my query. In our case, we are asking CESTAT to condone the delay in filing of appeal before Commissioner Appeals and direct the Commissioner to hear our appeal on merits.

The case law cited by your goodself actually pertains to condonation of delay in filing appeal before CESTAT.

[KASTURI SETHI]

SH.ROHIT GOEL JI,

O.K. I have re-studied your query. I am of the view that nobody/no authority can go beyond the Act. All the courts (including semi-judicial) only explain the laws.I have seen case laws on this very issue in favour of the department.

[ABHISHEK TRIPATHI]

Dear Rohit Ji,

Judgments in favour:

1. Jagdish Ispat Pvt Ltd v The Commissioner CGST, CE and Cus, 2020 (2) TMI 1008 - CESTAT NEW DELHI
2. YAPP India Automotive Systems Pvt Ltd. V. CCE & ST., Pune, - 2018 (8) TMI 690 - CESTAT MUMBAI
3. CISF v Commissioner, 2017 (6) TMI 279 - UTTARAKHAND HIGH COURT
4. Sri Senbakagiri Murugan Powerloom Weavers - 2018 (11) TMI 760 - MADRAS HIGH COURT
5. Sri Kanaka Durga Developers - 2018 (4) TMI 1498 - KARNATAKA HIGH COURT

[KASTURI SETHI]

Delay condonable in filing appeal when assessee has strong case on merits.---------Supreme Court in the case of CCE, Belgaum Vs. Vasavadatta Cements Ltd. reported as 2018 (3) TMI 993 - SUPREME COURT decided on 17.1.18