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2011 (10) TMI 260 - AT - Service TaxAppeal - copy of order received on 19.11.2008 and appeal filed on 11.02.2009 within 3 months is within the period limitation thus allowed. - Commissioner (Appeals) direted to dispose of the assessee s appeal on merits subject of course to compliance with Section 35F of the Central Excise Act by the appellant.
Issues: Appeal against dismissal of appeal as time-barred under Section 35A of Central Excise Act, applicability of Section 85 of Finance Act 1994 for service tax appeals.
The judgment addresses the issue of an appeal filed by the assessee against the dismissal of their appeal as time-barred under Section 35A of the Central Excise Act. The appeal was filed in ST-4 form prescribed for service tax appeals within the statutory period of limitation of 3 months from the date of receipt of the decision/order of the adjudicating authority relating to service tax, interest, or penalty. The Commissioner (Appeals) erroneously applied Section 35A of the Central Excise Act instead of Section 85 of the Finance Act 1994, under which the appeal was filed. The original authority's order pertained to the recovery of irregularly availed CENVAT credit for payment of service tax on output service. The Tribunal found the appeal fit for summary disposal, set aside the impugned order, and directed the Commissioner (Appeals) to dispose of the appeal on merits, treating it as a service tax appeal. The Tribunal observed that the appeal filed by the assessee was in compliance with the statutory period of limitation prescribed under Section 85 of the Finance Act 1994 for service tax appeals, which is 3 months from the date of receipt of the decision/order of the adjudicating authority. The Tribunal emphasized that the appeal should be considered as a service tax appeal, clarifying the nature of the appeal and directing the Commissioner (Appeals) to proceed with the disposal of the appeal on its merits. The Tribunal's decision highlights the importance of correctly applying the relevant provisions of the law to determine the timeliness and nature of the appeal filed by the assessee, ensuring procedural fairness and adherence to statutory requirements in tax matters.
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