Shri Mahendra Janubha Zala vs Commissioner Of Service Tax, Rajkot

(Arising out of OIA-RJT-EXCUS-000-APP-146-14-15 dated 11.08.2014, passed by Commissioner (Appeals) Central Excise & Service Tax, Rajkot)

Shri Mahendra Janubha Zala : Appellant (s)

VERSUS

Commissioner of Service Tax, Rajkot : Respondent (s)

Represented by :

For Appellant (s) : Shri N.V. Suchak and Shri K. Radia, Chartered Accountant For Respondent (s) : Shri Alok Srivastava, Authorised Representative

For approval and signature :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

No 3 Whether their Lordships wish to see the fair copy of the Order?

Seen 4 Whether Order is to be circulated to the Departmental authorities?

Yes

CORAM :

Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical)

Date of Hearing / Decision : 09.06.2015

ORDER No. A/10780 / 2015 Dated 09.06.2015

Per : Mr. P.K. Das;

The applicant filed this application for condonation of delay of 130 days in filing the appeal.

2. Learned Counsel on behalf of the applicant submits that the applicant is a proprietorship firm and the proprietor was suffering from Eye problem from July 2014. He was advised to take complete rest for about two months. In the meantime, on 21.08.2014, the impugned order was served on them and their employee Shri Tapubhai Nathabhai Sadiya received the order and kept in some file, which was not informed to the proprietor. After joining the business in March 2015, the proprietor received a telephonic message from the department for recovery of penalty, and then, the proprietor immediately took steps to file appeal and the appeal was filed on 31.03.2015. In support of condonation of delay, the applicant filed an affidavit of the proprietor and its employee. He submits that there is no negligence and inaction on the part of the applicant and therefore, the delay in filing appeal, should be condoned.

3. On the other hand, the learned Authorised Representative on behalf of the Revenue submits that the delay was occurred due to negligence of the employee of the applicant firm and this can not be a reason to condone the delay. He further submits that eye problem of the proprietor was even before receiving the impugned order. The main contention of the learned Authorised Representative is that the delay is only for the reason negligence of the applicant and therefore, delay should not be condoned.

4. After hearing both the sides and on perusal of the records, we find that the main contention of the applicant is that the impugned order was received by his employee on 21.08.2014 and he had left the job from 15 September 2014; and the proprietor of the applicant firm was not aware of receipt of this impugned order. We find that there is no dispute that the order was served on the applicant on 21.8.2014. The impugned order was misplaced by the employee of the applicant firm. The discretionary powers to condone the delay under the provisions of Finance Act would be exercised when the applicant is vigilant and serious. In the present case, we find that the delay is caused due to negligence and inaction on the part of the employee of the applicant. Hence, the delay of 130 days in filing the appeal can not be condoned.

5. In view of that, we reject the application for condonation of delay in filing appeal. Consequently, the appeal filed by the applicant is also dismissed.

(Dictated and pronounced in the Court)

(P.M. Saleem) (P.K. Das) Member (Technical) Member (Judicial) ..KL

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