2013 (3) TMI 566 - AT - Service Tax

Application for Condonation of delay, rejected by Commissioner (appeals) - Delay more than 10 months Held that Reliance was made on the case Singh Enterprises vs. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA wherein it was held that a Commissioner (Appeals) did not have the power to condone any delay of appeal beyond the condonable period of delay prescribed under Section 35 of the Central Excise Act, 1944. The apex court further held that even this Tribunal, High Court, or even the Supreme Court could not condone such delay. - Appeal dismissed - Against the assessee.

Summary

Issues:
1. Condonation of delay in filing the appeal.
2. Waiver of pre-deposit and stay of recovery.
3. Dismissal of appeal by the appellate authority based on delay in filing.

Condonation of Delay in Filing the Appeal:
The appellant sought condonation of a 50-day delay in filing the appeal. Despite the absence of representation for the appellant, the application was allowed after a satisfactory explanation of the delay was provided by the appellant. The delay was acknowledged, and the learned Additional Commissioner (AR) supported the condonation. The Tribunal found the explanation satisfactory and proceeded to deal with the appeal after dispensing with the pre-deposit.

Waiver of Pre-deposit and Stay of Recovery:
The appellant also sought waiver of pre-deposit and stay of recovery, which was considered for summary disposal by the Tribunal. After perusing the records and hearing the learned Additional Commissioner (AR), it was found that the case was fit for summary disposal. Consequently, the pre-deposit was dispensed with, and the Tribunal proceeded to deal with the appeal.

Dismissal of Appeal Based on Delay:
The appeal was directed against the appellate Commissioner's order, which dismissed the assessee's appeal due to a delay of 10 months in filing. The appellate authority noted that it did not have the power to condone such a delay beyond the prescribed period. The learned Additional Commissioner (AR) referred to a Supreme Court case stating that delays beyond the prescribed period could not be condoned by the Commissioner (Appeals), Tribunal, High Court, or even the Supreme Court. As the delay in this case was significant at 10 months, it could not be condoned. Citing the binding case law, the Tribunal dismissed the appeal and disposed of the stay application.

In conclusion, the Tribunal addressed the issues of condonation of delay, waiver of pre-deposit, and dismissal of the appeal based on delay in filing. The Tribunal allowed the condonation of the delay in filing the appeal, dispensed with the pre-deposit, and ultimately dismissed the appeal due to the significant delay of 10 months, in line with the legal precedent cited by the learned Additional Commissioner (AR).