2011 (9) TMI 700 - HC - Central Excise

Power of Commissioner to condone delay in filing of Appeal - Technical Inspection and Certificate Services - Held That - Delay was more than three months after the expiry of three months prescribed for filing an appeal after receipt of copy of the order. Appeal of assessee dismissed

Summary

Issues:
- Appeal challenging order passed by Tribunal and Appellate Authority
- Liability of State instrumentality for service tax
- Condonation of delay in filing appeal
- Interpretation of provisions of the Limitation Act and Section 85 of the Act

Analysis:

1. Appeal challenging order passed by Tribunal and Appellate Authority:
The State filed an appeal against the order of the Tribunal and the Appellate Authority, which upheld the order of the Adjudicating Authority regarding the levy of service tax and education cess on the assessee. The Tribunal dismissed the appeal, leading to the State filing the present appeal before the High Court.

2. Liability of State instrumentality for service tax:
The main contention raised by the assessee was that being an instrumentality of the State, they were not liable to pay any service tax. The Adjudicating Authority had confirmed the service tax liability, which was challenged through the appellate process. The assessee relied on specific judgments to support their argument, emphasizing the exemption from service tax due to their status as a State instrumentality.

3. Condonation of delay in filing appeal:
A significant aspect of the case involved the delay in filing the appeal before the Appellate Authority. The assessee had filed an appeal with an application for condonation of delay, citing sufficient cause for the delay. However, the Appellate Authority dismissed the appeal as barred by limitation, leading to further appeals. The issue of condonation of delay was crucial in determining the validity of the appeal process.

4. Interpretation of provisions of the Limitation Act and Section 85 of the Act:
The primary legal issue addressed by the High Court was whether the provisions of the Limitation Act applied to an appeal filed under Section 85 of the Act before the Commissioner of Central Excise (Appeals). The Court analyzed Section 85, emphasizing the prescribed period of limitation for filing an appeal and the provision for condonation of delay. It was clarified that when specific provisions exist for limitation and condonation of delay under the Act, the general provisions of the Limitation Act, particularly Section 5, do not apply. The Court differentiated between appeals under Section 85 and Section 86, highlighting the necessity of adhering to the prescribed timelines and conditions for condonation of delay.

In conclusion, the High Court dismissed the appeal, ruling in favor of the revenue and against the assessee. The Court emphasized the importance of complying with the specific provisions of the Act regarding limitation and condonation of delay, ultimately upholding the orders passed by the lower authorities.