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Judgment
N. Kumar, J.—The Appellant has preferred this appeal challenging the order passed by CESTAT rejecting the application filed for condonation of delay in preferring the appeal and consequently dismissing the appeal. There is a delay of 229 days in preferring the original appeal before the
CESTAT. The impugned order discloses though the notice was served on the official who was working on contract basis, no effective steps were taken to represent the Respondents. Therefore an order came to be passed without hearing them. It is that order which was challenged in appeal.
The Tribunal felt the reason given for condoning the delay do not constitute a sufficient cause and therefore refused to condone the delay and consequently dismissed the appeal. The Appellant instead of preferring an appeal as has been done filed a writ petition, which came to be dismissed as alternative remedy was available to him. Even then he did not open eyes and challenged the order in Supreme Court by filing Special Leave Petitions which was withdrawn subsequently. It is thereafter the present appeal is filed and therefore delay of 395 days in filing this appeal
The learned Counsel for the Appellant submits that this is a case where the Appellant has paid, the entire service tax due. Infact in respect of the subsequent year he challenged the very imposition of tax and matter is pending in appeal. In these circumstances submits that the Tribunal ought to have taken a liberal approach in condoning the delay which has not been done. In this Court there is a delay and the cause is aforesaid prosecuting the matter in a wrong forum. As the liability to pay tax is disputed, justice of the case demands that an opportunity should be given to the Appellant to substantiate his claim.
Per contra, the learned Counsel appearing for the revenue opposed the condonation of delay in preferring this appeal and also contended that CESTAT rightly declined to condone the delay. The said orders being discretionary orders no case of interference is made out. Further he submitted that pendency'' of these matters before various forum for more than VA years penalty, interest m not recovered. If they are permitted to proceed further to recover the amounts, Court may take liberal approach and give an opportunity.
In view of the aforesaid facts arid rival contentions it is clear that there; is demand of payment of tax and for non-payment of tax within the time Stipulated, the Appeallant/Assessee is liable to pay interest, penalty etc.; in accordance with law. Though he has paid the entire tax, in the absence of any interim order passed in any of the proceedings, we do not see why the authority did not recover penalty and interest. At any rate there is no prohibition for recovery of the said amount. But when the liability itself is disputed and the said question is already before CESTAT in appeal preferred by the Appellant for the subsequent year, as it is settled law that an Assessee is not liable to pay any tax unless the statute warrants the same, the said question to be gone into by appropriate form.
In these circumstances, we are of the view that though there are latches on the Appellant, having regard to the nature of dispute, the amount involved, we deem it proper to give an opportunity to Appellant to agitate his rights, by condoning delay in both these appeals as well as appeal before CESTAT. However it is always open to the Respondent/revenue to proceed to recover the amount which is legitimately due in accordance with law.
In that view of the matter we pass the following:
ORDER
(i) the delay in preferring this appeal is condoned.
(ii) Appeal is allowed, condoning the delay in preferring the appeal before CESTAT, by setting aside the order passed by CESTAT.
(iii) CESTAT is now directed to restore the appeal to its original file and dispose of the appeal within a period of three months from the date of receipt of this order.