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June 2015

2015 (38) STR 12 (Cal.) Solux Galfab Pvt. Ltd. vs. Commissioner of Service Tax.

By Puloma Dalal, Jayesh Gogri, Mandar Telang Chartered Accountants
Reading Time 2 mins
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The ex-parte order can be set aside if sufficient cause for delay in filing the appeal is made out. Length of delay is immaterial, sufficient cause for delay is material.

Facts:
The petitioner filed an appeal along with application of condonation for delay of 21 days before the CESTAT . The Tribunal decided the application ex-parte and dismissed the appeal. After which a miscellaneous application was filed for restoration thereof and application for condonation of delay. The Tribunal misconstrued the application as a review application and recorded that sufficient cause for delay was not shown and dismissed the appeal. Therefore the present writ is filed.

Held:
The Hon’ble High Court held that the length of delay is immaterial, sufficient cause for such delay is of prime importance. Rather than finding fault with the application for condonation of delay, the Tribunal should encourage the litigation to be decided on merits and should not act harshly. The Tribunal invoked Rule 41 of the CESTAT (Procedure) Rules, 1982 for review as against Rule 20 of the said Rules which provides for setting aside ex parte order if sufficient cause is shown. The order was a set aside with a direction to fix up the date of hearing.

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