Condonation of Delay in filing of Appeal

[LALIT MUNOYAT]

The AO had passed the adjudication order determining a sum of Rs. 5 lakhs as service tax payable in the year 2012. The assessee being a small businessman closed his business and everything was forgotten thereafter. Now the assessee received a notice for payment of the service tax as determined. He now wishes to file an appeal with an application of condonation of delay. Since the Commissioner Appeal has time limitation, he can't admit the appeal.

In such a case can the assessee file the appeal directly before the CESTAT with an application for condonation of delay, by passing the first Appellate Authority?

Thanks in Advance

[Amit Agrawal]

No authority or court (including Apex Court) can condone such delay when delay is beyond extended period and appellate authority is Commissioner (Appeals).

However, please check if Order-In-Original was indeed issued & received by the assessee (i.e. he actually got such order) in the past. If assessee had not got any such order in the past, please ask Dept. in writing to provide 'documentary proof' of date-delivery of such order.

If Dept. failed to provide the same, please again ask Dept. in writing to provide attested copy of such order as assessee had never received the same in the past (by giving reference of earlier request given in writing). You may need to follow-up this request by writing 2/3 letters along-with meeting with concerned officials.

Once you succeed in getting attested copy of such order, you can file appeal with commissioner (Appeals) by treating date of receipt of such attested copy of such order, as date of receipt of original order (which was never received by the assessee in the past).

As a precaution, along-with appeal to Commissioner (Appeals), please also file an application seeking condonation of delay where you can explain entire factual background with proofs (i.e. copies of above-said correspondence with Dept. etc.) that subject order was never received by the assesses earlier and thereby, there is no delay in filing appeal.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.

[Amit Agrawal]

Please refer to case of M/S. SUVARNA FMS VERSUS COMMISSIONER OF CENTRAL EXCISE PUNE-I, as reported in 2019 (5) TMI 1024 - CESTAT MUMBAI where alleged delay to the tune of 1274 days from the date of order was ignored on the following ground:

"In our view, the application of condonation of delay itself is not required in this matter as appeal has been filed within three months from the date of receipt of the order and is well within the time, we direct the appeal to be taken on record and listed for hearing in due course.."

Even though this is tribunal ruling who has powers to condone any delay (which first appellate authority / Commissioner (Appeals) does not enjoy), reasoning given in this ruling with background facts are worth noting in the context of query raised here.

These are ex facie views of mine and the same should not be construed as professional advice / suggestion.

[KASTURI SETHI]

You must try. If CESTAT refuses, file writ petition with jurisdictional High Court. Article 226 of Constitution of India can save you.

[Amit Agrawal]

In my post at serial no. 1 earlier, kindly replace the word 'attested' to 'certified' at various places.

[LALIT MUNOYAT]

Thanks a lot every learned member for the valuable guidance given in the matter.

However, the Adjudication Order was received at his place by someone else and not by the assessee himself. Does not appear to be a convincing answer by him.

[KASTURI SETHI]

Order-in-Original must be delivered to the person whom it is addressed otherwise it can be treated 'NOT DELIVERED'. It can be pasted on the door of address's house. One or two years ago I read a case law. The Adjudication Order was delivered to a tea-stall owner. The matter travelled to the Supreme Court and the party won the case.

[ranjit pandey]

I will suggest to wait for Amnesty scheme for service tax.Government is of the view of bringing Amnesty for service tax also.

AI Summary

Condonation of delay: seek certified proof of non receipt, file appeal with condonation, or seek tribunal relief. Verify whether the Order in Original was actually received; request documentary proof of delivery and, if unavailable, obtain a certified copy and treat its receipt date as the operative date. File an appeal to the Commissioner (Appeals) with an application for condonation of delay attaching correspondence evidencing non receipt. If the first appellate authority refuses, pursue the tribunal which can condone delay or, alternatively, seek writ relief; preserve evidence that the order was not delivered to the addressee.