2019 (4) TMI 751 - HC - Central Excise

Court grants appeal, sets aside Tribunal order, allows delay condonation on deposit, directs merit-based disposal.

PRADEEP KUMAR. A Versus THE COMMISSIONER OF CENTRAL TAX AND CENTRAL EXCISE, KOZHIKODE

The High Court allowed the appeal, setting aside the Tribunal's order and granting delay condonation subject to the appellant depositing an additional ... Condonation of delay of 431 days in filing appeal - filing o appeal before the tribunal after dismissal of writ by the HC - Tribunal refused to condone the delay on technicalities - Held that:- It is well settled principle of law that, in dispensation of justice the judicial authorities should consider and dispose of the causes on merits to the extent possible, rather than dismissing them on technicalities. It is always left open to the judicial authorities to consider the question regarding the condonation of delay with a liberal attitude. Power is also left with such authorities to impose reasonable costs for condoning the delay, in order to compensate the prejudices and hardships which will be caused to the opposite parties. The Tribunal ought to have considered the prima facie merits of the appeal and ought to have considered the question of condonation of delay even on the basis of imposing costs - Having been failed in taking such an approach, there occurred a miscarriage justice in dismissing the appeal consequent to dismissal of the delay condonation application, which need to be rectified. The delay condonation petition filed before the Tribunal will stand allowed subject to condition of the appellant depositing 15% of the existing demand in addition to the amounts already deposited before the authority concerned, within a period of one month from today - appeal allowed. Issues:1. Assessment of service tax and penalty imposed on the appellant.2. Dismissal of the delay condonation application by the Tribunal.3. Justifiability of rejecting the application for condonation of delay without considering imposing costs.4. Consideration of condonation of delay on the basis of imposing costs.5. Rectification of miscarriage of justice in dismissing the appeal.6. Imposition of conditions on the appellant for safeguarding Revenue's interests.Analysis:1. The appellant was assessed with service tax on services provided to a bank, with penalty imposed for alleged failure to register and pay service tax. The Commissioner (Appeals) set aside the penalty but remanded the assessment. The appellant's writ petition challenging this was dismissed due to expiry of the limitation period. Subsequently, the appellant filed an appeal before the Tribunal with a delay condonation application (ST/COD/20902/2017).2. The Tribunal dismissed the appeal and delay condonation application due to a delay of 431 days, citing unsatisfactorily explained reasons for delay. The appellant then challenged this decision before the High Court, questioning the rejection of the delay condonation application without considering imposing costs and not evaluating the reasons for the delay adequately.3. The High Court emphasized the principle of dispensing justice on merits rather than technicalities. It criticized the Tribunal for not considering the prima facie merits of the appeal and the option of condonation of delay with costs. The Court found a miscarriage of justice in the Tribunal's approach and directed the appellant to deposit an additional 15% of the existing demand to condone the delay, safeguarding the Revenue's interests.4. Consequently, the High Court allowed the appeal, setting aside the Tribunal's order. The delay condonation petition was allowed, subject to the appellant depositing the additional amount within a month. The Court instructed the Tribunal to restore the appeal on its files and proceed with a merit-based disposal. Pending appeal disposal, recovery of the balance amount was to be kept in abeyance upon timely payment by the appellant.