2011 (3) TMI 878 - AT - Service Tax

Waiver of pre-deposit - Condonation of delay - Limitation - Appeal should have been file on or before by 13/07/2009 whereas it has been filed on 15/01/2010 resulting in a delay of 6 months beyond the prescribed period of three months - As per the Finance Act, 1994 the Commissioner(Appeals) is not empowered to condone the delay in filing of appeal beyond three months after the expiry of statutory period of three months in terms of Section 85 of the Finance Act, 1994 - Hence, the appeal is not maintainable as the same is filed beyond the statutory time limit - Accordingly, the appeal is rejected as barred by limitation of time.

Summary

Issues:
1. Appeal for waiver of pre-deposit of confirmed amounts.
2. Dismissal of appeal by the Commissioner(Appeals) due to late filing.
3. Doctrine of merger in the context of appeal rights.
4. Authority's power to condone delay in filing appeals.
5. Tribunal's jurisdiction to entertain appeals filed beyond statutory period.

Analysis:
1. The appellant filed a stay petition seeking waiver of pre-deposit of confirmed amounts. The Tribunal decided to dismiss the stay petition and proceed with the appeal itself.

2. The appellant's appeal was dismissed by the Commissioner(Appeals) due to late filing beyond the statutory period. The Commissioner cited the Finance Act, 1994, which mandates appeals to be filed within three months from the date of the decision or order appealed against. The Commissioner noted the delay of 6 months and rejected the appeal as barred by limitation of time.

3. The appellant argued that despite losing the right to file an appeal before the Commissioner(Appeals), they could still challenge the decision on merits before the Tribunal based on the doctrine of merger. However, the Tribunal disagreed, citing a Supreme Court ruling that the Tribunal cannot delve into the merits of a case if the first appellate authority has not done so. The Tribunal emphasized that appeals filed beyond the statutory period cannot be entertained.

4. The Tribunal highlighted that the Commissioner(Appeals) lacks the power to condone delays in filing appeals beyond the specified statutory period. The Finance Act, 1994, restricts the Commissioner's authority to allow appeals beyond the initial three-month period, as per the proviso to Section 85(3).

5. Ultimately, the Tribunal found no merit in the appellant's appeal, as it was filed beyond the statutory time limit. Citing the settled law by the Supreme Court, the Tribunal dismissed the appeal and the stay petition, concluding that appeals filed beyond the prescribed period cannot be entertained by authorities under the specific statute.