9911796707
TMI Blog2019 (7) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... rue that each day s delay has not to be explained, but at the same time an Applicant is required to satisfy the Tribunal that there was sufficient cause for not presenting the cross-objection within the stipulated period of 45 days. In the present case, we are more than satisfied that the Applicant has miserably failed to satisfy that there was sufficient cause in not filing the cross-objections within the stipulated period. Even otherwise, the delay in filing the cross-objection is inordinate and under Section 86(5) of the Act, the Appellate Tribunal can permit the filing of the cross-objection even after the expiry of 45 days, if it is satisfied that there was sufficient cause for not presenting them within that period. It has been found as a fact that the Applicant has been unable to satisfy the Tribunal that it was prevented by sufficient cause from preferring the Appeal within the stipulated period - There is no explanation for the delay from April, 2014 and the delay from 27 February, 2017 has also not been satisfactorily explained. The delay condonation Application is, accordingly, rejected. The Appeal may be listed for final hearing on 12 September, 2019. - Servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... requests made by the learned Counsel for the Applicant. On 25 January, 2018 Shri Ajay Kumar, learned Counsel appearing on behalf of the Applicant made a request that the matter may be adjourned to enable him to file a vakalatnama. On his request the matter was again adjourned on 19 February 2018 to 15 March, 2018. On 15 May, 2018, no Counsel appeared and the Bench, by way of last chance, adjourned the matter to 20 June, 2018. On 20 June, 2018, the matter was again adjourned as a last chance after imposing a cost of ₹ 5,000/- on the Applicant. On 05 July, 2018, the matter was adjourned to 26 July, 2018. 5. The Cross Appeal was filed by the Applicant on 20 July, 2018 with an application for condoning the delay in filing the Cross Appeal. 6. It needs to be pointed out that Cross Objection have to be filed within 45 days of the receipt of the notice of the Appeal as provided for under Section 86(4) of the Finance Act, 1994 the Act. However, sub section (5) of Section 86 provides that the Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objection after the expiry of the period referred to in sub-section (3) or sub-secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the month of February, 2018. 8. That office of the present counsel informed the applicant company that apart from filing of reply, it would be advisable to file a cross-appeal/ Cross-Objection. Accordingly, all the records were requisitioned from the Applicant Company. 9. As stated earlier, office and record of Applicant Company was completely disorganised due to bad financial health and staff crunch, procurement of records pertaining to the years 2004-05 to 2011-12 turned out to be a time taking and cumbersome task. However, with painstaking efforts the applicant could procure some original documents of the case file with the help of which the present Cross-Objection is drafted and is being filed. 10. That in the entire process, a delay of 468 days has ensued in preferring the present Cross-Objection, which is neither intentional nor deliberate. 11. That Department s appeal is presently pending and it would be in the interest of justice that this application for condonation of delay in filing cross-objection be allowed and Applicant s cross-objection be taken on record and be heard on merits. 12. That this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal by speed post on 19 March, 2014. There is no specific denial regarding receipt of this notice in any of the paragraphs of the application. All that has been stated in paragraph 4 of the application is that the notice issued in Service Tax Appeal No. 50787 of 2014 was received by the Applicant on 14 February, 2017 and it approached its Counsel for filing a response. It also needs to be stated that pursuant to the order dated 16 July, 2019 passed by the Tribunal, the office has put up a note that the communication dated 19 March, 2014 was sent to the appellant by speed post on 27 March, 2014 bearing No. ED 310025420 IN. In such a situation, in the absence of any specific denial by the Applicant about receipt of the aforesaid speed post on 27 March, 2014, the cross-objections should have been filed within 45 days from the date of receipt of the communication, which can safely be assumed to be within two or three weeks thereafter. There is absolutely no explanation for any delay from April, 2014 to 27 February, 2017, which is the date on which the applicant claims to have received the second notice dated 8 February, 2017. It needs to be noted that the address mentioned in both t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was neither intentional nor deliberate. Paragraph 11 mentions that the Appeal filed by the Department was pending and so it would be in the interest of justice that the delay is condoned and the Cross-objections are heard on merits. 15. The delay sought to be explained by the Applicant is with regard to the second notice dated 08 February, 2017 that was sent by the Tribunal by speed post informing that the appeal filed by the Department would be listed before the Tribunal on 27 February, 2017. This notice dated 8 February, 2017 was received by the Applicant on 14 February, 2017. The period of 45 days prescribed for filing the Cross-Objection expired on 31 March, 2017. The cross-objection contemplated under Section 86(4) of the Act were required to be filed within 45 days. The order sheet reveals that the matter was regularly listed before the Tribunal on as many as nine occasions in 2017 and except for the order dated 22 August, 2017 which mentions that the matter was being adjourned to 27 September, 2017 (without indicating as to on whose behalf adjournment was granted), all the orders specifically mention that the matter was being adjourned on requests made on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the matter was engaging the attention of the Tribunal in the cross-objection filed by the party, it would be appropriate to condone the delay in filing the appeal. This decision, therefore, does not support the Applicant. 18. Even otherwise, the delay in filing the cross-objection is inordinate and under Section 86(5) of the Act, the Appellate Tribunal can permit the filing of the cross-objection even after the expiry of 45 days, if it is satisfied that there was sufficient cause for not presenting them within that period. It has been found as a fact that the Applicant has been unable to satisfy the Tribunal that it was prevented by sufficient cause from preferring the Appeal within the stipulated period. 19. There is no explanation for the delay from April, 2014 and the delay from 27 February, 2017 has also not been satisfactorily explained. 20. Thus, for all the reasons stated above, it is not possible to condone the delay in filing the cross-objection. The delay condonation Application is, accordingly, rejected. As the Application for condonation of delay has been rejected, the cross-objection also stand rejected. 21. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
