2022 (3) TMI 107 - AT - Service Tax

Tribunal Allows Appeal Despite Delay, Imposes Cost

M/s Bhavya Creators Pvt. Ltd. Versus Commissioner, Central Excise, New Delhi

The Tribunal decided to condone the delay in filing the appeal, attributed to the misplacement of the order copy and difficulties in obtaining it, ... Condonation of delay of 4-5 years in filing appeal - seeking out of turn hearing of the appeal - appellant’s assertion is that the impugned order dated 29.03.2014 has not been served upon it, as it was not sent by registered post - HELD THAT:- Since the letter could not be delivered by the postal authorities and was returned, there is no receipt. The remarks of the postal authorities on the letter are consistent the report of Sepoy who had gone to serve the letters of personal hearing upon the appellant. Therefore, the impugned order could not be served through registered post. Section 153 (b) states “if the order, decision, summons or notice cannot be served in the manner provided in clause (a), by affixing it on the notice board of the customs house”. As applicable to the Service Tax Proceedings in the present case, the service was completed by affixing it on the notice board of the office - there was no delay in serving the impugned order. There are no justification for a delay of 4-5 years in filing this appeal after it has been issued and served. However, in order not to deprive the appellant of an opportunity of appeal, we condone the delay on payment of a cost of ₹ 1,00,000/- which must be paid by the appellant to the PM CARE Fund within a period of one month from the date of this order - application disposed off. Issues:1. Condonation of delay in filing the appeal.2. Service of the impugned order.3. Justification for the delay in filing the appeal.Condonation of Delay:The appellant filed multiple miscellaneous applications seeking condonation of delay in filing the appeal. The delay was explained by the appellant due to the misplacement of the certified copy of the order by an employee, resulting in the appeal being filed 19 days late. The appellant argued that the delay was also caused by difficulties in obtaining the copy of the impugned order due to the bifurcation of the Service Tax Commissionerate. The Department contested the delay, stating that the order was duly served through registered post and by affixing it on the notice board. The Tribunal, after considering the facts, decided to condone the delay but imposed a cost of Rs. 1,00,000 to be paid to the PM CARE Fund within one month.Service of the Impugned Order:The Department explained its efforts to serve the appellant with the impugned order, including sending letters for personal hearings through registered post and personal delivery attempts. The appellant claimed that the order was not served as per the required procedures, citing issues with the delivery through registered post and personal visits to the office to obtain the order. The Tribunal examined the evidence and concluded that the order was effectively served by affixing it on the notice board, as per the provisions of Section 153 of the Customs Act.Justification for the Delay:The Tribunal acknowledged the lack of justification for the significant delay of 4-5 years in filing the appeal after the order was issued and served. Despite this, the Tribunal decided to condone the delay to allow the appellant the opportunity to appeal, subject to the payment of the imposed cost. The Tribunal also clarified that orders are uploaded on the website and not served individually, addressing any concerns regarding the service of the order to the appellant.In conclusion, the Tribunal addressed the issues of condonation of delay, service of the impugned order, and the justification for the delay in filing the appeal in a detailed manner, ultimately deciding to condone the delay with a cost imposed on the appellant. The judgment highlighted the importance of compliance with procedural requirements and the consequences of delays in legal proceedings.