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TMI Blog2020 (2) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... enting of Immovable Property Service" under Section 65 (90a) read with Section 65A of the Chapter V of the Finance Act, 1994; ii. An amount of Rs. 7,26,523/- (Rs.Seven Lakhs twenty six thousand five hundred and twenty three only) being the Service Tax payable under 'Renting of Immovable Property Services' provided by him during the period from 1.6.07 to 30.6.09 should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 3,60,347/- (rupees three lakhs sixty thousand three hundred and forty seven only) already paid by him as discussed above should not be appropriated towards the service tax demanded; iii. An amount of Rs. 14,531/- (Rs. Fourteen thousand five hundred and thirty one only) being the Education Cess payable under 'Renting of Immovable Property Services' provided by him during the period from 1.6.07 to 30.6.09 should not be demanded from him under proviso to Section 73(1) of the Chapter V of the Finance Act, 1994 and the amount of Rs. 7,208/- (Rupees seven thousand two hundred and eight only) already paid by him and discussed above should not be appropriated towards the service tax demanded; iv. An am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of Rs. 4,08,878/- out of the total tax demand of Rs. 7,48,319/- (which is 55% of the demand, while the appellant is required to pay only Rs. 74,831/- being 10% of the tax demanded) but handicapped because of mishandling by an employee who left the job without intimation.' On the above substantial question of law, which is involved, we have heard the submissions of learned counsel for the appellant and of the learned standing counsel appearing for the respondents. The short but important question is - 'Whether sufficient cause is shown for the condonation of delay?' The case of the appellant in support of the request for condonation of delay, as stated in the petition filed before the CESTAT, in brief, is as follows: The appeal ought to have been filed before the CESTAT on or before 22.03.2014, as the order in the appeal, which is dated 09.12.2013, was received, on 23.12.2013, by the appellant. The issue involved in the main proceeding is demand of service tax and education cess under the category of leasing/renting of immovable property services. The Additional Commissioner has confirmed the demand on the ground that the amount received as refundable deposit attrac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the premises is vacated by the tenant/occupant and cannot be treated as consideration for service rendered under renting of immovable property. Hence, demand for short payment of service tax is not sustainable. The appellant has a got fair chance of success in the intended appeal in view of the legal position obtaining and as the facts of appellant's case are identical to the facts in various decided cases, wherein the very same afore-stated issue was decided. This appellant does not stand to benefit by lodging the appeal with delay. Refusing to condone delay results in a meritorious matter being thrown out at the threshold and justice being denied. Even if the delay is condoned, the highest that may happen is that the appeal would be decided on merits, after hearing the parties. The delay is non-deliberate delay. There are no mala fides, as substantial portion of demand is paid already. The doctrine of every day's delay must be explained must be applied in a rational common sense pragmatic manner. There is no material to hold that the delay had occasioned deliberately or on account of culpable negligence or on account of mala fides. In support of the said contentions, learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly. The reasons offered for the delay are not rational and justifiable." In support of the said contentions, learned standing counsel relied upon the following decisions: 1. Singh Enterprises v. CCE, Jamshedpur 2008(221) ELT 163 (SC) 2. R.K.Ispat Ltd., (Textile Division) v. CCE, Rohtak 2017 (346) ELT 245 ( P & H) 3. CCE, Mumbai v. Punjab Fibres Ltd., 2008(223) ELT 337 (SC) 4. M/s.Singh Enterprises v.CCE, Jamshedpur 2008 (221) ELT 163 (SC) 5. P. Mody, Chairman, Indian Sulphacid Industries Ltd., v. Commissioner 2015 (320) ELT A271 (SC) We have gone through all the decisions. Before proceeding further, it is apt to refer to the following settled propositions on the settled legal aspects regarding condonation of delay. "The statutory provision mandates that while considering the applications for condonation of delay, the applicants are required to show sufficient cause for condonation of such delay. Condonation of delay is a matter of discretion of the Court. The words 'sufficient cause' under Section 5 of the Limitation Act should receive liberation construction so as to achieve substantial justice. However, while condoning the delay, the Court should not forget the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not aware of the issuance of the order. The petitioner became aware of the order only on receiving a letter from the department seeking to know the details of appeal filed. The delay is neither willful nor wanton.' Before the CESTAT no counter is filed by the revenue. The main submissions of the appellant are as follows: - 'The security deposit is returnable when the premises is vacated by the tenant/occupant. It cannot be treated as consideration for service rendered under renting of immovable property; and, the acceptance of security deposit is a business practice common to the renting of immovable property service. It is a cushion for the service provider against the possible default in payment of rentals and damages to the property, if any, committed by the occupant/tenant. The said security deposit cannot form part of service provided by the appellant. The said position is well supported by precedents. Therefore, the appellant has got fair chances of success in the appeal. In that view of the matter, refusal of condonation of delay results in a meritorious matter being thrown out at the very threshold and justice being defeated.' Based on the above submissions, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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