2015 (3) TMI 1247 - HC - Service Tax

Maintainability of appeal - condonation of delay - whether the first appellate authority was justified in dismissing the appeal filed by petitioner on the ground that there is delay of 142 days in filing the appeal? Held that - Except self serving statement of petitioner there is no material whatsoever available to arrive at a conclusion that order in original dated 27-9-2013 Annexure-D came to be served on petitioner on 9-10-2013 so as to exclude the period from date of order till date of service. In the absence of any proof being tendered petitioner cannot be heard to contend that this court in exercise of power under Article 226 of Constitution of India can condone such delay. When the statute prescribes the period of 60 days as the limitation to file an appeal and there being no provision under the Finance Act, 1994 to condone the delay by first appellate authority, question of entertaining such application for condonation of delay will not be in the domain of appellate authority. Appeal dismissed - delay not condoned.

Summary

Issues:
1. Justification of first appellate authority in dismissing appeal due to delay of 142 days.

Analysis:
The main issue in this case was whether the first appellate authority was justified in dismissing the appeal filed by the petitioner, a service provider, due to a delay of 142 days in filing the appeal. The petitioner argued that the appeal was filed within the time limit as the order under challenge was served on them on a specific date. However, the court noted that the appeal had to be filed within 90 days as per the Finance Act, 1994. The petitioner sought condonation of the delay, but failed to provide any material evidence to support their claim that the order was served on a later date than stated. The court emphasized that the limitation period prescribed by the statute must be adhered to, and there was no provision to condone the delay by the first appellate authority. The court cited previous judgments to support the view that when there is a specific period of limitation provided by an act, it overrides the general law of limitation, and delay cannot be condoned beyond the prescribed limit. The court ultimately dismissed the petition, stating that no merit was found in the petitioner's arguments.

The court highlighted that the law laid down by the Hon'ble Apex Court and previous judgments of the Division Bench of the court supported the view that the limitation period for filing an appeal must be strictly followed, and delay cannot be condoned beyond the prescribed limit. The court emphasized that when an express provision is made for a period of limitation and for condoning the delay, such provisions override the general law of limitation. In this case, the delay exceeded the permissible limit, and the first appellate authority was within its rights to dismiss the appeal on the ground of limitation. The court clarified that even if there was a sufficient cause for the delay, the appellate authority could not condone the delay beyond the specified period. The court upheld the decision of the authorities, stating that the order passed was legal and valid, and there was no need for any interference. The substantial question of law was answered in favor of the revenue and against the assessee, leading to the dismissal of the appeal.

In conclusion, the court found no merit in the petitioner's arguments regarding the delay in filing the appeal. The court dismissed the petition, emphasizing that the limitation period prescribed by the statute must be strictly adhered to, and delay beyond the specified limit cannot be condoned. The court did not express any opinion on the merits of the claim, focusing solely on the issue of delay in filing the appeal. The respondent was permitted to file a memo of appearance within a specified timeframe.