Where appeal was filed before wrong forum within stipulated time leading to delay in filing appeal before proper forum, said delay must be condoned

Service Tax : Where appeal was filed before wrong forum within stipulated time leading to delay in filing appeal before proper forum, said delay must be condoned
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[2014] 51 taxmann.com 179 (Kolkata - CESTAT)
CESTAT, KOLKATA BENCH
Horticulture Development Foundation
v.
Commissioner of Service Tax-Kolkata*
DR. D.M. MISRA, JUDICIAL MEMBER
ORDER NO. FO/A/75534/2014
STAY PETITION NO. 241/2012
SERVICE TAX APPEAL NO. 130/2012
SEPTEMBER  5, 2014
Section 85, of the Finance Act, 1994, read with sections 35 and 35A, of the Central Excise Act, 1944 and sections 128 and 128A, of the Customs Act, 1962 - Appeals - Condonation of Delay - Commissioner (Appeals) - Assessee filed appeal against adjudication order before Assistant Commissioner of Service Tax within prescribed period instead of before Commissioner (Appeals) - Later, assessee filed appeal before Commissioner (Appeals) claiming that delay occurred on account of filing of appeal before wrong forum was condonable - Commissioner (Appeals) held that Preamble of impugned order stated that appeal would lie before Commissioner (Appeals); in spite thereof, assessee filed appeal before wrong forum and hence, delay was not condonable - HELD : Filing of appeal before wrong forum within stipulated time but delay in filing appeal before proper forum, deserves to be condoned - Hence, delay in question was condoned and appeal was remitted back to Commissioner (Appeals) for consideration afresh [Para 7] [In favour of assessee]