M/S. Drishti vs Commissioner Of Service Tax, Mumbai

[Arising out of Order-in- Appeal No. 177 dtd. 17/12/2012 passed by the Commissioner of Central Excise & Service Tax(Appeals) IV, Mumbai-1]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities?

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M/s. Drishti : Appellants

VS

Commissioner of Service Tax, Mumbai : Respondent

Appearance

Shri. M.P. Kasale, Advocate for the Appellants Shri. A.B. Kulgod, Asst. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 9/1 /2015 Date of decision 9/1/2015

ORDER NO.

Per : Ramesh Nair

The appeal is directed against order-in-appeal No. 177 dtd. 17/12/2012 passed by the Commissioner of Central Excise & Service Tax(Appeals) IV, Mumbai-1, wherein the Ld. Commissioner(Appeals) dismissed the appeal as time bar. The appellant before the Ld. Commissioner(Appeals) in their condonation of delay application given the reason for delay is that they handed over the order and papers to the advocate and due to delay on the part of the advocate the appeal was filed belatedly.

2. Shri. M.P. Kasale, Ld Counsel for the appellant submits that the appeal was filed before the Commisisoner(Appeals) though beyond 60 days but well within the condonable period of another 30 days. It is his submission that the appellant filed an affidavit of the advocate wherein the advocate has explained the reason for delay in filing the appeal. Mr. Kasale further stated that in the present case entire service tax alongwith interest and 25% penalty have been deposited. Therefore there was no reason for the appellant to intentionally delay the filing of the appeal before the lower Appellate Authority.

3. On the other hand, Shri. A.B. Kulgod, Ld. Asst. Commissioner(A.R.) appearing for the Revenue reiterates the findings of the impugned order.

4. I have carefully considered the submissions made by both the sides and perused the records.

5. Since, the Ld. Commissioner (Appeals) dismissed the appeal only on the time bar ground and the merit of the case was not decided. I am taking up the appeal only to examine that whether the Ld. Commissioner (Appeals) is correct in dismissing the appeal as time bar. On the perusal of the application for condonation of delay filed before the Commissioner(Appeals) by the appelant and also an affidavit given by the advocate of the appellant for explaining the reason for delay in filing the appeal before the Commissioner(Appeals), I find that the delay occurred is on the part of the advocate of the appellant that too for the reason that the advocates mother had been seriously ill and was also admitted in ICU number of times, for which he was busy in taking care of health of his mother and advocate also stated in the affidavit that during the relevant period his son was also suffering from jaundice. All these reasons were supported by the medical certificate submitted before the Commissioner(Appeals). As per the explanation of the advocate, his affidavit supported by evidences, I find the reasons given for delay in filing the appeal is satisfactory. Therefore the Ld. Commissioner(Appeals) ought not to have dismissed the appeal as time bar. In view of the above facts I set aside the impugned order and remand the matter to the Ld. Commissioner(Appeals) for deciding the matter on merit. Needless to say that the appellant should be granted sufficient opportunity to hearing for presenting their case. The appeal is allowed by the way of remand.

(Operative part pronounced in the Court)

Ramesh Nair Member (Judicial))

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