2014 (2) TMI 613 - AT - Service Tax

Tribunal grants appeal in service tax case, considers illiteracy, allows legal heir to proceed.

Shri Jay Prakash Shukla Versus CCE, Bhopal

The Tribunal allowed the appeal filed by the wife of the deceased against the order confirming service tax liability and penalty. The delay in filing was ... Condonation of delay - Held that:- Impugned order was passed by Commissioner (Appeals) on 14/3/11 and received by the applicant on 5/4/11. The normal period of limitation to file the appeal expired on or around 5th July, 2011, whereas the appeals stand filed on 4th August, 2011. It is seen that vide the impugned order the lower authorities have confirmed the service tax liability and has imposed penalty on Shri Brahmadeen Dwivedi. The said Shri Brahmadeen Dwivedi had expired on 7th July, 2010. It is also seen that the appeal before Commissioner (Appeals) was filed by his son Shri Buddhasen Dwivedi, who is also absconding subsequently. After the passing of the present impugned order, the present appeal stands filed by the wife of Shri Brahmadeen Dwivedi, who is an illiterate lady and took sometime to sought legal advice for the purpose of filing of appeal by the Power-of-Attorney holder Shri Jay Prakash Shukla. In view of the above explanation, we deem it fit to condone the delay of 30 days - Decided in favour of assessee. Stay application - Held that:- Total duty involved in both the cases is Rs. 4,88,372/- alongwith penalty of identical amount. The said duty stands confirmed against Shri Buddhasen Dwivedi, Proprietor of a Proprietary firm, in the name of Shri Brahmadeen Dwivedi. As the Proprietor had expired, the proprietary firm also stops existing with effect from the date of death of the Proprietor - Stay granted. Issues:1. Delay in filing the appeal.2. Legal heir's right to continue proceedings.3. Stay petition for duty and penalty.Analysis:1. Delay in filing the appeal:The judgment addresses the delay in filing the appeal against the order passed by the Commissioner (Appeals). The impugned order confirmed the service tax liability and imposed a penalty on Shri Brahmadeen Dwivedi, who had passed away before the order. The appeal was initially filed by his son, who subsequently absconded. The present appeal was filed by the wife of Shri Brahmadeen Dwivedi, seeking condonation of a 30-day delay in filing. The Tribunal, considering the circumstances, condoned the delay, noting the illiteracy of the appellant and the time taken to seek legal advice.2. Legal heir's right to continue proceedings:The judgment also deals with a miscellaneous application for the continuation of proceedings by the legal heir of Shri Brahmadeen Dwivedi, who had passed away. The application was made in accordance with Rule 22 of CESTAT Procedural Rules, 1982. The Tribunal allowed the application, recognizing the legal heir's right to continue the proceedings in place of the deceased.3. Stay petition for duty and penalty:Regarding the stay petition, the total duty involved in the cases was Rs. 4,88,372/- along with an identical penalty amount. The duty was confirmed against Shri Buddhasen Dwivedi, the proprietor of a proprietary firm in the name of Shri Brahmadeen Dwivedi. Since the proprietor had passed away, the proprietary firm ceased to exist. The Tribunal granted the stay petition in this context, considering the circumstances. The judgment disposed of both the condonation of delay applications, the miscellaneous applications, and the stay petitions accordingly.In conclusion, the judgment addresses the issues of delay in filing the appeal, the legal heir's right to continue proceedings, and the stay petition for duty and penalty, providing detailed reasoning for each decision made by the Tribunal.