2013 (5) TMI 257 - AT - Service Tax

Condonation of delay - Held that - The findings of the case of Singh Enterprises Vs. CCE, Jamshedpur 2007 (12) TMI 11 - S.C. wherein the apex court considered the question whether a Commissioner (Appeals) was empowered to condone any delay of more than 30 days under Section 35 of the Central Excise Act, and answered the question in the negative and, further, held that Section 5 of the Limitation Act 1963 was not applicable is equally applicable to service tax appeals filed belatedly with Commissioner (Appeals) inasmuch as the provisions of Section 85(3) of the Finance Act 1994 are pari materia to those of Section 35 of the Central Excise Act. Thus, the appeal filed against the impugned order is rejected. The stay application also stands disposed of.

Summary

Issues:
1. Delay in filing appeal against an order of the Commissioner (Appeals).
2. Power of Commissioner (Appeals) to condone delay.
3. Applicability of Section 85(3) of the Finance Act 1994 in service tax appeals.

Analysis:
1. The appeal in question was filed against an order of the Commissioner (Appeals) rejecting the assessee's appeal as time-barred due to a delay of 147 days over the normal period of limitation prescribed under Section 85 of the Finance Act 1994. The party received the order-in-original on 11.04.2011 and filed the appeal on 05.12.2011. The Tribunal noted that the delay far exceeded the condonable period of delay under Section 85(3) of the Act, leading to the rejection of the appeal by the Commissioner (Appeals).

2. The Tribunal observed that the Commissioner (Appeals) did not have the power to condone such a significant delay in filing the appeal. Citing the case law of Singh Enterprises Vs. CCE, Jamshedpur [2008 (221) E.L.T. 163 (S.C)], the Tribunal highlighted that the apex court had previously ruled that a Commissioner (Appeals) lacked the authority to condone delays of more than 30 days under Section 35 of the Central Excise Act. The Tribunal concluded that this ruling was equally applicable to service tax appeals due to the similarity between the provisions of Section 85(3) of the Finance Act 1994 and Section 35 of the Central Excise Act.

3. Consequently, the Tribunal held that the appeal against the impugned order had to be rejected, as the delay was not condonable by the Commissioner (Appeals) and fell outside the permissible limits set by the relevant legislation. The stay application was also disposed of in light of the decision to reject the appeal. The judgment was pronounced and dictated in open court, bringing the matter to a close based on the legal analysis and precedents cited during the proceedings.