2011 (5) TMI 610 - AT - Service Tax

Application for stay - waiver of pre-deposit - Time limitation - It is seen from the impugned order that the Commissioner (Appeals) has rejected/dismissed the appeal as time barred without going into the merits of the case - It is seen from the provisions of Section 84 of the Finance Act, 1994, the Commissioner (Appeals), has got power to condone the delay in filing of the appeal upto three months from the last date within which the appellant is required to file an appeal - Appeal is allowed by way of remand

Issues:
1. Waiver of pre-deposit of confirmed amounts.
2. Dismissal of appeal as time-barred.
3. Power of Commissioner (Appeals) to condone delay in filing appeal.
4. Failure of the appellant to appear before lower authorities.
5. Remand of the matter to the Commissioner (Appeals).

Issue 1: Waiver of pre-deposit of confirmed amounts
The appellant filed a stay petition seeking waiver of pre-deposit of amounts confirmed by the adjudicating authority and upheld by the Commissioner. The Tribunal found that the appeal could be disposed of immediately after granting the stay application. Consequently, the stay was allowed, and the appeal was taken up for disposal.

Issue 2: Dismissal of appeal as time-barred
The Commissioner (Appeals) had dismissed the appeal as time-barred without delving into the merits of the case. The Tribunal noted that if the Commissioner (Appeals) does not provide findings on the case's merits, the Tribunal cannot assess the merits. Regarding the time bar, the order-in-original was issued on 11.12.2009, received in January 2010, and the appeal was filed on 12.04.2010. Section 84 of the Finance Act, 1994, allows the Commissioner (Appeals) to condone delays up to three months. The Tribunal opined that the Commissioner (Appeals) should have directed the appellant to file a delay condonation application for timely disposal of the appeal.

Issue 3: Power of Commissioner (Appeals) to condone delay in filing appeal
The Tribunal emphasized that the Commissioner (Appeals) has the authority to condone delays in filing appeals within three months of the stipulated deadline. It was suggested that the Commissioner (Appeals) should have instructed the appellant to submit a delay condonation application for timely resolution of the matter.

Issue 4: Failure of the appellant to appear before lower authorities
The appellant had not been present for the lower authorities' proceedings, failing to appear before the adjudicating authority despite opportunities. In the interest of justice, the Tribunal directed the appellant to file a delay condonation application before the Commissioner (Appeals) within four weeks. The Commissioner (Appeals) was instructed to hear the application within eight weeks and then decide on the matter based on the application's outcome.

Issue 5: Remand of the matter to the Commissioner (Appeals)
The Tribunal set aside the impugned order and remanded the matter back to the Commissioner (Appeals) for further proceedings. The appeal was allowed by way of remand, indicating that the Commissioner (Appeals) would need to reconsider the case based on the directions provided by the Tribunal.

This detailed analysis of the judgment covers all the issues involved, providing a comprehensive understanding of the Tribunal's decision and the legal principles applied.

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