V. XAVIER AMALAN Vs. CESTAT, CHENNAI

JUDGEMENT

(1.) This appeal by the assessee is directed against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal (the Tribunal) in Order No. 40267 of 2013, dated 19-7-2013. By the said order, the Tribunal rejected the application filed by the appellant for condoning the delay of 92 days in filing the appeal. The appellant preferred appeal against the order dated 31-1-2012, which vas received by the appellant on 23-3-2012. By the said order, the Commissioner confirmed the demand of Service Tax of Rs. 64,03,339/- payable for the period from 2005-06 to 2008-09 on Construction of Complex Services under Section 73(2) of the Finance Act, 1994, apart from demanding interest under Section 75 of the Finance Act, 1994 and imposing penalty equivalent to the demand of Service Tax. The appellant in their affidavit filed in support of the appeal submitted that the order passed by the Commissioner was received in their office on 23-3-2012 and after some time, the same was entrusted to their counsel for filing appeal before the Tribunal. The limitation period of three months for preferring appeal expired on 23-6-2012 and since the case papers were misplaced in the office of the Counsel it could not be traced and the appeal could not be presented immediately. Therefore, the assessee pleaded that the delay in filing the appeal is not willful but for the reasons stated above and the appellant being a small business man will be put to undue hardship, if the delay is not condoned. The Tribunal pointed out that condonation of delay in filing the appeal depends upon the facts and circumstances of each case and it can be followed by certain principles, by which Court can exercise its discretion. The Tribunal was of the view that the reasons for the delay as narrated by the appellant is without any details of events and it is not supported by any material and the mere affidavit of the appellant cannot be sufficient to condone the delay in filing the appeal. Consequently, the application for condoning of delay was rejected and the appeal along with the stay petition were also dismissed.

(2.) Challenging the said order, the present appeal has been filed and the assessee seeks admission of the same, on the following substantial questions of law:

(3.) We have heard Mr. M.N. Bharathi, learned counsel appearing for the assessee and Mr. P. Mahadevan, learned Standing Counsel appearing for the Department.