2013 (3) TMI 700 - HC - Service Tax

Summary

Issues involved: Challenge to order dismissing appeal due to delay in filing u/s 85 of Finance Act, 1994; Interpretation of power to condone delay u/s 85(3) of Finance Act, 1994; Comparison with previous judgments; Interpretation of power of Appellate Tribunal u/s 86(5) of Finance Act, 1994.

Issue 1: Challenge to order dismissing appeal due to delay in filing u/s 85 of Finance Act, 1994
The writ petition challenged an order by the Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal due to a delay in filing beyond the prescribed time limit u/s 85 of the Finance Act, 1994. The Tribunal held that the appeal was filed after the permissible period of three months, extendable to another three months, and there was no provision to condone the delay beyond this period. Consequently, the appeal was dismissed.

Issue 2: Interpretation of power to condone delay u/s 85(3) of Finance Act, 1994
The Commissioner, Central Excise (Appeals) refused to admit the appeal citing a delay of seven months and twenty-six days, stating that u/s 85(3) of the Finance Act, 1994, the delay cannot be condoned if it exceeds three months from the date of receipt of the order-in-original. The Commissioner expressed that the power to condone delay is limited by the statutory provisions, and in this case, the delay could not be condoned.

Issue 3: Comparison with previous judgments
The petitioner referred to the judgment in the case of ITC Ltd. v. Union of India, where the Supreme Court allowed an appeal to be filed within a month from its order. However, the judgment in Singh Enterprises v. Commissioner of Central Excise emphasized that specific limitation periods should not be overridden. The petitioner also highlighted Section 86(5) of the Finance Act, 1994, which allows the Appellate Tribunal to admit an appeal after the expiry of the relevant period if sufficient cause is shown.

Conclusion:
The High Court held that the judgment in ITC Ltd. did not apply in this case, as clarified by the Supreme Court in Singh Enterprises. The Court noted that the question was not about the Tribunal's power to admit appeals after the prescribed period but whether the delay could be condoned by the Commissioner (Appeals). As such, the provisions of Section 86(5) were not applicable. The writ petition was dismissed, and parties were directed to bear their own costs.