M/S. Bagchi Transport Co vs Commissioner Of Service Tax, Kolkata
- CitationAppeal No.ST-71220/13
Ratio decidendi
The rule this decision rests on
A delay in filing an appeal can be condoned only where the appellant gives a proper explanation for the delay; a plea of illness will not suffice unless supported by medical evidence covering the whole period of delay, including evidence of prior treatment for the ailment relied upon, and evidence that the appellant was incapacitated throughout the relevant period.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Order-in-Original No.59/Commr/ST/Kol/2012-13 dated 31.01.2013 passed by the Commissioner of Service Tax, Kolkata.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL)
1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental Authorities?
M/s. Bagchi Transport Co. Applicant (s)/Appellant (s)
Vs.
Commissioner of Service Tax, Kolkata Respondent (s)
Appearance:
Shri Biswajit Mukherjee, Advocate for the Appellant(s)
Shri S.K.Naskar, AC(AR) for the Revenue
CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Shri H.K.Thakur, Member(Technical)
Date of Hearing :- 16.09.2015 Date of Pronouncement :- 16.09.2015
ORDER NO.FO/A/75498/2015
Per Shri H.K.Thakur.
1. This Miscellaneous Application for condonation of delay has been filed by the appellant seeking condonation of delay of 140 days in filing the Appeal against Order-in-Original No.59/Commr/ST/Kol/2012-13 dated 31.01.2013 passed by the Commissioner of Service Tax, Kolkata.
2. Shri Biswajit Mukherjee, ld.Advocate appearing on behalf of the Applicant argued that Order-in-Original dated 05.02.2013 was received by the appellant on 09.02.2013, but appeal could not be filed in time as the appellant fell sick and was bed-ridden due to his sickness till 17th of September, 2013. It was the case of the appellant that as per Medical Certificate dated 26.02.2013, 13.04.2013 and 28.06.2013 there was a delay which is justifiable.
3. Heard both sides and perused the case records. In the present case there is a delay of 146 days in filing the appeal which has been explained to be due to the sickness of Shri Anjan Bagchi, partner of the appellant. The reason for the delay has been argued to be due to the sickness of the appellant on account of high blood pressure and Bronchial Asthma. It is observed from the case records that Order-in-Original dated 05.02.2013 was received by the appellant on 09.02.2013. All the certificates produced from the Doctor were procured after the date of receipt of the Order-in-Original. The nature of ailments shown in the said certificates are on account of high blood pressure and Bronchial Asthma. No medical certificate/prescription has been produced by the appellant to show whether any treatment was being taken by the appellant before 26.02.2013 because high blood pressure and Bronchial Asthma are not a sudden appearance. It is also not brought on record whether now appellant is cured of high blood pressure/Bronchial Asthma when he is able to file the appeal. In view of the above observations delay in filing the appeal has not been properly explained by the appellant therefore COD application is rejected and accordingly Appeal filed by the appellant is also dismissed.
(Operative part of the order was pronounced in the open court.) SD/ SD/
(D.M.MISRA) (H.K.THAKUR) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm
3
Appeal No.ST-71220/13
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free