V. Xavier Amalan vs CESTAT, Chennai

T.S. Sivagnanam, J.�This appeal by the assessee is directed against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) in Order No. 40267 of 2013, dated 19-7-2013. By the said order, the Tribunal rejected the application filed by the appellant for condoning the delay of 92 days in filing the appeal. The appellant preferred appeal against the order dated 31-1-2012, which vas received by the appellant on 23-3-2012. By the said order, the Commissioner confirmed the demand of Service Tax of Rs. 64,03,339/- payable for the period from 2005-06 to 2008-09 on Construction of Complex Services under Section 73(2) of the Finance Act, 1994, apart from demanding interest under Section 75 of the Finance Act, 1994 and imposing penalty equivalent to the demand of Service Tax. The appellant in their affidavit filed in support of the appeal submitted that the order passed by the Commissioner was received in their office on 23-3-2012 and after some time, the same was entrusted to their counsel for filing appeal before the Tribunal. The limitation period of three months for preferring appeal expired on 23-6-2012 and since the case papers were misplaced in the office of the Counsel it could not be traced and the appeal could not be presented immediately. Therefore, the assessee pleaded that the delay in filing the appeal is not willful but for the reasons stated above and the appellant being a small business man will be put to undue hardship, if the delay is not condoned. The Tribunal pointed out that condonation of delay in filing the appeal depends upon the facts and circumstances of each case and it can be followed by certain principles, by which Court can exercise its discretion. The Tribunal was of the view that the reasons for the delay as narrated by the appellant is without any details of events and it is not supported by any material and the mere affidavit of the appellant cannot be sufficient to condone the delay in filing the appeal. Consequently, the application for condoning of delay was rejected and the appeal along with the stay petition were also dismissed.

Challenging the said order, the present appeal has been filed and the assessee seeks admission of the same, on the following substantial questions of law:

(a) Whether the order rejecting the appeal for belated filing of 92 days at threshold stage, by the first respondent in the facts and circumstances of the case will justify the reason "to secure the ends of justice" as provided under Rule 41 of CESTAT (Procedure) Rules, 1982?

(b) Whether the first respondent-Tribunal is justified in rejecting the appeal when the appellant had prima facie case on merits as on similar and identical matters the first respondent has granted full waiver of Service Tax demanded on construction of houses for tsunami victims?

(c) Whether the first respondent can justify the order dated 17-6-2013, an order passed without considering the ingredients of Section 35B(5) of the Central Excise Act, 1944 as made applicable to Service Tax matters?

(d) Whether the first respondent is justified in not condoning the delay of 92 days in presentation of appeal in terms of various catena''s of decisions including the decisions of Apex Court which emphasizes that a pragmatic and justice-oriented approach is to be made in condoning the applications for delay?

(e) Whether the first respondent is justified in seeking details of sequence of events for delay when the same is beyond the control of appellant and when the counsel for the appellant during the course of hearing emphasized the fact that delay was misplacement of appeal papers at his end and for this the appellant who has a statutory remedy should not be denied to pursue the same?

We have heard Mr. M.N. Bharathi, learned counsel appearing for the assessee and Mr. P. Mahadevan, learned Standing Counsel appearing for the Department.

It is no doubt true that the affidavit filed in support of the application for condonation of delay is sketchy and does not give specific details as to when the papers were entrusted to their counsel and such other matters.

Be that as it may, the appellant has raised substantive issues for consideration before the Tribunal in the matter of demand of Service Tax and imposition of penalty equivalent to the demand. Further more, there is no allegation that the appellant with certain mala fide intention preferred the appeal belatedly. That apart, the delay is not inordinate; but it is only 92 days. Therefore, in the interest of justice, this Court is of the view that the delay in filing the appeal should be condoned and accordingly, it is condoned. The Tribunal is directed to consider the matter on merits and in accordance with law subject to the appellant complying with the other provisions relating to the appeal. With the above direction, this civil miscellaneous petition is allowed. No costs. Consequently, the connected miscellaneous petition is closed.