DR. D.M. Misra, J.

1. This is an application filed seeking waiver of pre deposit of Service Tax of Rs.6,32,048/- and equal amount of penalty imposed under Section 78 of the Finance Act, 1994.

2. At the outset, the Ld. Advocate Shri Devaraj Sahu for the applicant submits that they have already deposited an amount of Rs.4,04,295/- before issuance of show cause notice. He submits that the Ld. Commr. (Appeals) has rejected their appeal on the ground of delay in filing the appeal before him. Explaining the delay in filing the appeal before the Ld. Commr. (Appeals), he submits that the applicant had handed over all the papers to him in December, 2009. He submits that as there was shifting of his residence and in the process of such shifting, the Appeal papers were bundled with some other files and therefore, could not be traced and the appeal was filed late resulting into delay of two months and twenty days. He submits that in support he has filed an affidavit before the Ld. Commr. (Appeals).

3. Per contra, the Ld. A.R. for the Revenue submits that due to the variance in the dates shown in the affidavit, the Ld. Commr. (Appeals) has not accepted the same and rejected the appeal on the ground of limitation. He submits that even though, the stamp paper is dated 18th November, 2010, it is typed to have been affirmed on 16th day of April, 2010.

4. In his rejoinder, the Ld. Advocate for the applicant submits that the affidavit was signed on 18/11/2010 before the Notary and by mistake, the date of deposition was wrongly typed as 16th day of April, 2010. He submits for such typographical error, the facts stated in the affidavit cannot be discarded.

5. Heard both sides and perused the records. We find that the Ld. Commr. (Appeals) has not decided the issue on merit but dismissed the appeal on the ground of late filing of appeal before him by two months and twenty days i.e. within the condonable limit of three months, as is evident from the record. We find that the advocate has submitted affidavit before the Ld. Commr. (Appeals). He stated that even though the papers were handed over to him in time but because of shifting of his residence from one place to another place, the appeal papers got mixed up with some other files, resulting into the bonafide delay in filing the appeal. Needless to mention that principle of law is very clear in this regard; for the lapses of the Advocate, an Appellant should not suffer. Regarding the discrepancy of the dates in the affidavit, in absence of contrary evidence, we do not find force in the contention of the Ld. A.R. for the Revenue that the contention of the same are not acceptable. Consequently, we condone the delay and remit the matter to the Ld. Commissioner (Appeal) to consider the case on merit afresh. Needless to mention an opportunity of hearing be allowed given to the appellant. Appeal is allowed by way of Remand. S.P. disposed off.