TMI Blog2019 (6) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... in exercising the extraordinary jurisdiction to condone the said delay of 64 days accepting the satisfactory explanation offered by the petitioner in view of the merits found in the appeal preferred by the Assessee subject to costs of ₹ 10,000/- which otherwise would result in failure of justice. The delay in preferring the appeal is condoned and the appeal is restored to the file of the respondent Commissioner (Appeals) with a direction to decide the appeal on merits in accordance with law in an expedite manner, in any event, not later than three months from the date of receipt of certified copy of the order subject to compliance of pre-deposit and cost of ₹ 10,000/- to be deposited with the respondent Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is averred that during the investigation conducted by the service tax department, it was found that the petitioner is carrying on the activities of renting/leasing of buildings and is liable to pay service tax as the said activity is coming under the taxable service of Renting of immovable property upto 30.06.2012 and under taxable service from 01.07.2012 onwards. The Adjudicating Authority passed the order on 30.11.2017/11.12.2017 and it was served on the petitioner on 21.01.2018 against which the petitioner had preferred an appeal before the Appellate Authority on 25.05.2018. 4. The Commissioner (Appeals) rejected the appeal preferred by the petitioner as barred by limitation, beyond the condonable period of 30 days. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered view, as observed by us hereinabove, the absence of the case of the appellant by the first appellate authority has resulted in a failure of justice or gross miscarriage of justice, as per the view taken by the Full Bench of High Court of Gujarat in case of Panoli Intermediate (India) (P) Ltd., (supra). Hence, the petition under Article 226 of the Constitution could be maintained and it was a fit case to exercise power under Article 226 of the Constitution to interfere with the order of the first appellate authority and the interference not being made, has resulted in failure of justice. But at the same time, even if it becomes a case for exercise of the power under Article 226 of the Constitution, the Court may ensure that no litig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority has to be construed as the sufficient cause shown and deserves to be condoned. However, in view of the statutory limitation on the powers, the Appellate Authority has declined to condone the said delay. There is no prohibition for this Court under Articles 226 and 227 of the Constitution in exercising the extraordinary jurisdiction to condone the said delay of 64 days accepting the satisfactory explanation offered by the petitioner in view of the merits found in the appeal preferred by the Assessee subject to costs of ₹ 10,000/- which otherwise would result in failure of justice. 10. Accordingly, the delay in preferring the appeal is condoned and the appeal is restored to the file of the respondent Commissioner ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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