Acumen Capital Market (India) Ltd. vs C.C.E., Customs and S.T., Cochin

T.B. Radhakrishnan, J—Admitted. Learned senior panel Counsel takes notice for the respondent. On consent of parties, this matter is heard finally.

Appellant filed an appeal before the Appellate Tribunal challenging imposition of penalty and on issue of levy of Service Tax. The period prescribed for filing such an appeal is 120 days. The appeal was out of time. It was delayed by 69 days. The appellant through the affidavit pleaded that the Managing Director of the company was out of station in connection with business activities and such official issues led to the non-institution of the appeal within the prescribed time. The Tribunal has the power to condone the delay. That power, which is specifically reflected in Section 35B(5) of the Central Excise Act, 1944, envisages discretionary power in that regard. Though the Tribunal has stated in the impugned order that the non-availability of the Managing Director is not shown to have resulted in the business of the appellant to a standstill, and therefore, there is no reason to condone the delay, we think that the totality of the grounds raised in the appeal ought to have also been relevant consideration for viewing the situation as one where ends of justice would be satisfied, if delay is condoned on terms. This is because, if that course is adopted, that would pave way for better dispensation of justice by extending an opportunity of hearing to the appellant and the establishment to have a proper disposal of the matter relating to Service Tax on merits, rather than on default. For the aforesaid reasons and in the result, the impugned order of the Tribunal is set aside and the application seeking condonation of delay in instituting the appeal before the Tribunal will stand allowed on condition that the appellant remits to the Revenue an amount of Rs. 10,000/- (Rupees ten thousand only) as costs within a period of ten days from today. If receipt of such remittance is presented before the Tribunal, the appeal of the appellant will be considered further, in accordance with law. This appeal is ordered accordingly.