2021 (9) TMI 601 - AT - Service Tax

Condonation of delay of 9 years and 222 days in filing the appeal - appellant had not received copy of the impugned order and that they came to know about the order only after receiving a letter with regard to Sabka Vishwas Scheme on 20.12.2019 - HELD THAT - Undisputedly, the appellant through his Consultant has appeared for the personal hearing on 23.3.2010. The appellant has thereafter apparently abandoned the litigation and has not pursued the same. Although, it is stated in the application that they did not receive the order, later when the documents were produced by the Department to evidence the service of the impugned order, the appellant has taken a U-turn by filing an affidavit on 25.8.2021. In the affidavit, it is stated that the order must have been served on some staff of the appellant firm. This fact that appellant filed appeals against the orders passed upon Show Cause Notices issued for subsequent periods was taken up as a major ground to canvass that there was no mala fide on the part of the appellant - We fail to understand why the appellant chose to sleep over the order impugned in this appeal/application. Even if there be oversight/omission, the delay cannot be so huge when they attended the personal hearing. There is deliberate inaction which does not befit normal human conduct. When it is established that the impugned order is served, the appellant has to set forth sufficient cause for not filing the appeal within time. There is huge delay in filing these appeals, especially when they have attended the personal hearing. The appellant has not made out sufficient cause for condoning the delay - COD application dismissed.

Summary

Issues:
Delay in filing appeal, condonation of delay, reasons for delay, service of impugned order, negligence of appellant, mala fide intentions, previous show cause notices, legal precedents cited.

Delay in filing appeal:
The appellant filed an application for condonation of delay of 9 years and 222 days in filing an appeal against an Order-in-Appeal. The Department contended the delay to be 10 years and 7 months (3860 days). The appellant claimed they did not receive the impugned order until they received a letter about the Sabka Vishwas Scheme in 2019. However, evidence showed the order was served on the appellant in 2010. The appellant attended a personal hearing in 2010 but failed to pursue the appeal, leading to a significant delay. The Tribunal noted deliberate inaction by the appellant despite being aware of the impugned order.

Condonation of delay:
The appellant's counsel argued that there was no mala fide intention in not filing the appeal earlier, citing previous show cause notices diligently replied to by the appellant. Legal precedents were presented to support the argument for condonation of delay. However, the Department strongly opposed the application, highlighting the enormous unexplained delay and negligence on the part of the appellant. The Tribunal emphasized the need for the appellant to provide a plausible and acceptable explanation for the delay, especially considering the attendance at the personal hearing.

Reasons for delay:
The appellant, in a later affidavit, mentioned the possibility of the order being received by their staff without informing them. This explanation was deemed insufficient by the Tribunal, considering the long delay in filing the appeal. The appellant's attempt to justify the delay by referring to appeals filed for subsequent periods was not deemed satisfactory, as the delay remained unexplained and unjustified.

Negligence of appellant:
The Department argued that the appellant had abandoned the appeal after receiving the impugned order and had not diligently pursued the case for about 10 years. The appellant's claim of not being aware of the order until 2019 was challenged, stating that the appellant's consultant had attended the personal hearing in 2010. The Department accused the appellant of trying to mislead by claiming ignorance of the order for an extended period.

Mala fide intentions:
The appellant's counsel emphasized the absence of mala fide intentions in not filing the appeal promptly, pointing to successful appeals filed for similar issues in subsequent periods. However, the Department argued that the appellant's actions indicated gross negligence and deliberate inaction, undermining the appellant's claim of no mala fide intentions. Legal precedents were cited by both parties to support their arguments regarding the appellant's intentions.

Previous show cause notices:
The appellant's counsel highlighted the diligent responses to previous show cause notices and successful appeals filed for similar issues in subsequent periods. These actions were presented as evidence of the appellant's good faith and lack of mala fide intentions in not filing the appeal promptly. However, the Department contended that these actions did not justify the significant delay in filing the current appeal, indicating negligence and deliberate inaction on the part of the appellant.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved, the arguments presented by both parties, and the Tribunal's decision regarding the condonation of delay in filing the appeal.