HIGH COURT OF KARNATAKA
Affiliated Computer Services (I) (P.) Ltd.
Commissioner of Service Tax, Bangalore
WRIT PETITION NO. 11090 OF 2011(T-RES)
AUGUST 4, 2011
N. Kumar, J.
Sri N.R. Bhaskar, learned Standing Counsel is directed to take notice to the respondent.
2. Heard the learned Counsels for the parties.
3. The assessee preferred an appeal against the order passed by the Commissioner of Central Excise (Appeals). There was a delay of 42 days in preferring the appeal before the Commissioner of Central Excise. In the affidavit filed in support of the appeal, he has set out the circumstances under which the delay is caused. However, the Tribunal was not satisfied with the bona fide explanations given by the assessee and therefore, they refused to condone the delay and consequently, the appeal came to be dismissed. Hence the present appeal by the Assessee.
4. The delay is 42 days. The Apex Court has laid down in the case of Collector Land Acquisition, Anantnag. v. Mst. Katiji 1987 (28) E.L.T. 185, how the question of delay has to be considered by the Appellate Courts. No doubt, ultimately, it depends on the facts of each case. Having regard to the circumstances explained in the affidavit by the assessee and the law laid down by the Apex Court, we are of the view that the Appellate Tribunal has taken a narrow view of the matter. An appeal is a substantive right. The assessee should have a full opportunity to put forth his case and should be able to get relief, if any, in accordance with.
5. It is difficult to sustain the assessee’s negligence. However, the assessee cannot also be let scot free. Now, he has preferred this appeal and the learned advocate for the Department has to appear and contest the matter. Hence, we deem it proper to impose costs of Rs. 5,000/- on the assessee. Accordingly, we pass the following.
6.The appeal is allowed. The impugned order is set aside. The assessee/appellant shall pay a sum of Rs. 5,000/- to the respondent as costs.