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Judgment
R. Sudhakar, J.—This appeal is filed against the Final Order No. 40338 of 2014, dated 2-6-2014 passed by the Customs, Excise and Service Tax Appellate Tribunal, Chennai (for brevity, "the Tribunal") raising the following substantial question of law:
"Whether the first respondent/Tribunal is right in rejecting the condonation of delay application for condoning the delay of 69 days in filing appeal filed by the appellant?"
1.1 The brief facts of the case are as under : The assessee is engaged in the business of providing taxable service under the category "Air Travel Agent" and is registered with the Service Tax Department. They claim to be discharging their Service Tax liability on the basic fare in terms of Rule 6(7) of the Service Tax Rules, 1994.
1.2 A show cause notice, dated 23-4-2012 was issued proposing to demand Service Tax amounting to Rs. 3,81,378/- for the period October, 2006 to March, 2010 under Section 73(1) of the Finance Act, 1994 along with interest and penalty. The show cause notice went on the premise that besides air travel service, the appellant was providing taxable services like Business Auxiliary Service, Rail Travel Agent Service and Tour Operator Service during the relevant period and since the registration obtained by the appellant is only in respect of the service rendered as Air Travel Agent, they failed to discharge Service Tax liability on the other services. In the adjudication order, the demand was confirmed along with interest and penalty.
1.3 Aggrieved by the said order, the appellant went on appeal before the Commissioner, who rejected the appeal in toto.
1.4 Thereafter, the appellant preferred an appeal to the Tribunal along with A. No. ST/COD/42113/2013 for condonation of delay of 69 days in filing the appeal. However, the Tribunal rejected the application for condonation of delay and consequently, dismissed the appeal and the stay application.
1.5 Challenging the said order, the present appeal is filed on the substantial question of law, referred supra.
We have heard Mr. Raghavan, learned counsel for the appellant and Mr. A.P. Srinivas, learned Standing Counsel, who took notice on behalf of the respondents, and perused the documents filed in support of this appeal.
The reason for the delay as stated in the affidavit filed by the Branch Manager of the appellant company before the Tribunal is that there was shifting of the branch office and in the process, records were misplaced and, therefore, they could not file the appeal in time. Though this reason did not find favour with the Tribunal, we are inclined to interfere in the matter by condoning the delay of 69 days, as we find that the appellant has been diligently pursuing the matter before the adjudicating authority as well as the appellate authority and the delay is marginal.
On prima facie case, the appellant relies upon Circular No. 117/11/2009-S.T., dated 30-10-2009. However, we are not inclined to go into the merits of the case at present, except to allow the appeal accepting the plea for condonation of delay, as we find that the delay is marginal.
In the decision of the Andhra Pradesh High Court in Sri. Bhavani Castings Ltd. Vs. Commr. of C.EX., Visakhapatnam-II, relied upon by the Tribunal, the High Court felt that basic averments which are required for condonation of delay were not available in the affidavit and held that mere bald allegations are not sufficient for condonation of delay and accordingly, refused to accept the plea for condonation of delay. The averments made in the present case do not fall within the said parameters, as the Branch Manager of the appellant company filed an affidavit confirming the shifting of the branch office and misplacing of the relevant papers. That apart, the conduct of the appellant does not indicate inaction or negligence in pursuing the matter. The explanation offered by the appellant for the marginal delay of 69 days constitutes a sufficient cause for condonation of delay and deserves to be accepted. For the foregoing reasons, we are inclined to allow the appeal by condoning the delay of 69 days. The order of the Tribunal is set aside and the appeal is restored to the file of the Tribunal. No costs.