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2018 (9) TMI 664 - HC - Service TaxMaintainability of appeal - Condonation of delay - Whether dismissal of appeal by rejecting the application seeking condonation of delay in filing of appeal in the facts and circumstances of the case and in law could not be countenanced and appeal needs to be restored to the file of the CESTAT for decision afresh affording opportunity of hearing to the appellants to secure the ends of justice? Held that:- Admittedly, in the instant case, the appeal was filed well beyond the period of limitation, to be precise, 1557 days after the expiry of the limitation period. Undoubtedly, the Tribunal has power to condone the delay, if sufficient cause is shown by the Assessee. The Tribunal in the impugned order held that the cause shown by the Assessee is neither persuasive nor convincing and the delay being inordinate, rejected the application - The Assessee cannot be left remediless solely on the ground that he has been turned down at the very threshold, that is, at the stage of delay condonation petition. What is important to note from the impugned order is that while dismissing the application for condonation of delay, the Tribunal dismissed the appeal itself. Since the mandatory pre-deposit is paid, the appeal is numbered along with the application to condone the delay and this is precisely the reason why the Tribunal, while rejecting the condonation of delay application, has dismissed the appeal. Therefore, the order passed in the condonation delay petition, in effect, is an order passed in the appeal petition filed by the Assessee challenging the Order-in- Original dated 30.11.2012, and thus, it is a final order for all purposes, as against which, an appeal is maintainable under Section 130 of the Act. The substantial question of law, as framed for consideration, is answered in favour of the Assessee and against the Revenue - appeal allowed.
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