M/s. Royal C&F Agency Versus Commissioner of CGST & CE, Nagpur II
Service Tax
2018 (9) TMI 988 – CESTAT MUMBAI – TMI
CESTAT MUMBAI – AT
Dated:- 10-9-2018
ST/87116/2018 – A/87292 / 2018
Service Tax
Dr. Suvendu Kumar Pati, Member (Judicial)
For the Appellant : Shri D.H. Nadkarni, Advocate
For the Respondent : Shri O.M. Shivadikar, AC (AR)
ORDER
Heard on the appeal and perused the Order-in-Appeal.
It is found that Commissioner (Appeals), CGST & Central Excise, Nagpur has dismissed the appeal preferred before him by the present appellant on the ground that there was delay of 28 days in preferring appeal before him and the reasons cited by the appellant in condoning such delay cannot be considered as sufficient cause that had prevented him from presenting the appeal within the period of 2 months against the order of the first adjudicating authority.
He has not gone into the merit of the case.
2. During hearing of the appeal, the ld. Counsel for the appellant subm
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e same and was putting the blame on the Chartered Accountant for which the Commissioner (Appeals) found the reason to be not convincing and the order needs no interference by the tribunal.
4. On the date of hearing, the ld. Counsel for the appellant submitted photocopies of appeal against order in revision no. 7/2009/ST/Review dated 09.11.2009, which order number is also found reflected in the order of the Commissioner (Appeals) and the same indicates that the letter of authority was filed by Chartered Accountant Shri Amit Agarwal and Shri Atul D. Sarda with inward stamp of CESTAT, Mumbai. In the final Order-in-Appeal nos. SN/152 & 153/NGP dated 19.12.2008 passed by the Commissioner (Appeals), Nagpur, in which present appellant was respondent no. 1, name of Shri Amit Agarwal as the counsel for the respondent is also reflected. However, in this impugned Order-in-Appeal names of advocates Shri G.L. Deshpande and Shri Sanjay Agarwal are found mentioned to have represented the appellant d
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ed his promise that he would draft the appeal on time and after his recovery from illness when he met his Chartered Accountant he came to know that the appeal was still not filed. The Commissioner (Appeals) equated such conduct of appellant as subletting the task of filing the appeal and conveniently forgetting about the same.
7. In a judicial proceeding, it has to be borne in mind that due to narrow technicalities, substantial justice cannot be denied. Service of experts is hired and that itself would justify a person's sincerity in pursing his right of appeal to get the desired remedy and the same can never be equated with sub-letting the task and forgetting the same. In the instant case the appellant submitted that he was sick and his sickness was not doubted by the Commissioner (Appeals). Under the circumstances, a man of ordinary prudential would have come to the finding the appellant was prevented by sufficient cause to file the appeal at the appropriate time due to sickness.
8
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The Hon'ble Supreme Court also observed that in exercise of discretion on the facts of each case, keeping mind that in construing the expression “sufficient cause”, the principle of advancing substantial justice is of prime importance.
10. Section 86 (7) dictates the Tribunal to follow the same procedure as it exercises and follows in hearing the appeals and making orders under Central Excise Act 1994 and the Central Excise Act vide Section 35C empowers this Tribunal to confirm, modify or annul the decision of the order appeal against, which indicates that the merit of the decision is to be assessed by the Appellate Tribunal. In the instant case, as found from the order of the Commissioner (Appeals), no merit concerning tax liability of the appellant has been discussed and the appeal filed by him was rejected as not maintainable as hit by the period of limitation.
11. Section 35B (b) empowers the Appellate Tribunal to entertain appeal against an order passed by the Commissioner (App
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