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TMI Blog2020 (2) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... to the revenue/respondent herein. While considering the applications for condonation of delay, what is to be seen is whether the interest of revenue will stand protected, even while recognizing the right of the assesse to exercise the statutory remedies available to the assesse and the statutory right of appeal cannot be made redundant by dismissing the application for condonation of delay on technical grounds. This is a fit case for condonation of delay and affording an opportunity to the appellant to have the intended appeal decided on its merit by the CESTAT. Hence, the impugned order is liable to be set aside and that such a course sub-serves the ends of justice. Appeal allowed. - Central Excise Appeal No.1 of 2019 - - - Dated:- 4-7-2019 - SRI M. SEETHARAMA MURTI AND SRI GUDISEVA SHYAM PRASAD JJ. Petitioner Advocate: K. Vijay Kumar Respondent Advocate: Suresh Kumar Routhu (SC For CBEC And ST) JUDGMENT [Per Hon ble Sri Justice M. Seetharama Murti] This Central Excise Appeal, under Section 35(G) of the Central Excise Act, 1944, is filed by the unsuccessful applicant/appellant assailing the order, dated 24.05.2018, passed in Application No.ST/C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not be demanded; and vi. Penalty should not be imposed on him under Section 76, Section 77 and Section 78 of the Chapter V of the Finance Act, 1994 for failure to pay service tax by suppressing the fact of providing of taxable service, failure to take registration within the time prescribed and failure to file periodical returns as discussed above. [Reproduced verbatim] Thereafter, the adjudicating authority, by an order, 12.12.2012, in Original No. VIZ STX 001 ADC 001 12 confirmed the demand in the show cause notice to the extent indicated in the said order. Aggrieved of the orders of the adjudicating authority, the appellant herein filed appeal no.69/2012(V-I) ST before the appellate authority - the Commissioner: Customs, Central Excise and Service Tax (Appeals), Visakhapatnam. The said authority dismissed the said appeal by an order, dated 09.12.2013. Thus, the order of the original adjudicating authority was upheld. Aggrieved of the said order of the appellate authority, the appellant filed an appeal before the Customs, Excise and Service Tax Appellate Tax Tribunal [CESTAT] in Appeal No.30882/2017 . Since delay had occasioned in filing the said appeal, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of January, 2014. Hence, he could not attend the office regularly. As he was finding it difficult to attend to his duties, he suddenly left the job in June, 2014, without any intimation. As there was no letter or other correspondence from the Department, the appellant was not aware of the issuance of the order. The petitioner became aware of the order only on receiving a letter from the department seeking to know the details of appeal filed. The delay is neither willful nor wanton. The delay may kindly be condoned. No counter is filed to this application. In this appeal, the grounds urged and the contentions raised by the appellant are as follows: - The Division Bench of CESTAT has not considered the full and peculiar facts relevant to the case which warranted condonation of delay. The reason for the delay is explained in the petition filed for condonation of delay. Even before the issuance of show cause notice, the appellant paid an amount of ₹ 3,71,158/-. The appellant further paid, by way of a challan, dated 02.03.2017, ₹ 37,720/- as pre-deposit for filing the appeal before the CESTAT. Thus, out of the total tax demand of ₹ 7,48,319/-, the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r filed before this Court and submissions made in line with the said contentions, in brief, is as follows: - The appellant had not declared the details of services provided and the amounts received in connection with the rental services provided. The undisclosed facts came to light after investigation. The appellant has not fully discharged the service tax liability in respect of the taxable services provided. The appellant failed in the above regard even after the officers of the department appraised the appellant of the legal provisions. Under self assessment regime, a statutory obligation is cast upon every person providing service in terms of Section 70 of Finance Act, 1994 whereunder the appellant is legally required to assess and accordingly discharge the service tax liability within the time limits prescribed under law. In the statement of the authorized representative, it was stated that the advance deposit of ₹ 38,53,984/- paid to the appellant was towards future rentals of the premises. As per Section 65(105) of the Finance Act, 1994, taxable service includes any service provided or to be provided. The works to be provided were inserted in the definition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cies, prejudices or predilections could not form the basis for exercising the discretionary power. When the delay is directly a result of negligence or default or inaction of a party, such delay cannot be condoned on mere asking of that party. Length of delay is no matter and the acceptability of the explanation is the only criterion. If there is no acceptable explanation, sometimes a delay of shorter length may also be uncondonable whereas in certain other times, the delay of a very long range can be condoned provided sufficient cause is shown. The expression sufficient cause is a cause for which the defendant could not be blamed. [vide the decision of the Supreme Court in Parimal v. Veena AIR 2011 SUPREME COURT 1150 ]. In this decision, it was also held as follows: However, the facts and circumstances of each case must afford sufficient ground to enable the Court concerned to exercise discretion for the reason that whenever the Court exercises discretion, it has to be exercised judiciously. Dealing with the issue as to whether the cause shown is a sufficient cause for condonation of delay, it is to be restated that the explanation for the delay is as foll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f delay is more than three years and that such a long delay cannot be condoned for mere askance and on a sketchy explanation as observed by the CESTAT in the impugned order. In the first place, it is to be noted that out of total tax demand of ₹ 7,48,319/-, the appellant has already paid an amount of ₹ 4,08,878/- is not in dispute. Therefore, a substantial amount of the tax demand is already paid. As rightly contended, the delay deserves to be condoned, in the light of the contentions of the appellant that the reason for the delay is beyond the control of the appellant and that the said reason for the delay is on account of the ill health of the accountant and his leaving the job in June, 2014, without intimation, after having received the copy of the impugned order and placing it in audit file, which is not within the knowledge of the appellant. If the explanation is accepted and an opportunity is provided to have the cause in the proposed appeal decided on merits, the highest that would happen is that the cause would be decided on its merit after hearing the parties and in that view of the matter, it cannot be said that if the delay is condoned after accepting t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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