2015 (10) TMI 863 - HC - Service Tax

Court allows appeal due to delay citing appellant's brother's death as sufficient cause, directs CESTAT to hear on merits.

The High Court allowed the appeal, setting aside the order of the CESTAT that dismissed the appellant's appeal due to a delay of 262 days. The Court ... Condonation of delay - Dismissal of the appeal before the tribunal on the ground of delay of 262 days – Appellant submitted the reason of negligence of the consultants to file the appeal in time and the prolonged illness of his brother as reasons of delay – Held That:- We do not see how these two facts taken together cannot constitute sufficient cause for the delay in filing the appeal.The appellant ought not to be visited with the drastic consequence of dismissal of the appeal without the same being considered on merits on account of the Advocate/consultant’s default in not having filed the appeal in time. Added to this is the fact that during the original period of limitation it is not as if the appellant was guilty of any negligence.The appellant was pre-occupied in looking after his ailing brother. - Delay condoned - Matter restored before the tribunal. Issues: Appeal against dismissal of appeal on grounds of delay.Analysis:The High Court heard an appeal against the order of the CESTAT, which dismissed the appellant's appeal due to a delay of 262 days. The Court admitted the appeal based on the substantial question of law regarding the correctness of the dismissal on grounds of delay. The appellant received the impugned order on 04.08.2013, and the CESTAT found no explanation for the delay from that date. However, it was revealed that within the original limitation period of 90 days, the appellant had forwarded the appeal papers to consultants for filing, but the appeal was not filed in time. The Tribunal did not consider this a sufficient reason for the delay and inferred negligence on the appellant's part. During the original period, the appellant's brother, who was being cared for by the sole proprietor of the appellant firm, fell ill and passed away on 11.06.2014 after a prolonged illness.The High Court found that the combination of these circumstances constituted sufficient cause for the delay in filing the appeal. The Court noted that the appellant should not face dismissal of the appeal without it being considered on merits due to the default of the Advocate/consultant in filing the appeal on time. Additionally, during the original limitation period, the appellant was not negligent but preoccupied with caring for the ailing brother. Therefore, the Court ruled in favor of the appellant, allowing the appeal, setting aside the impugned order and judgment, and directing the CESTAT to hear the matter on merits.