2013 (6) TMI 609 - HC - Service Tax

Filing of appeal before Commissioner (Appeals) - time limit - section 85 - Held that - it is clear, Section 85 provides that any person aggrieved by any decision or order passed by an adjudicating authority can prefer an appeal within three months. Thereafter, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from preferring the appeal, the Commissioner can allow the appeal to be preferred within further period of three months and not beyond that. In the present case, the appeal has been preferred on 05.10.2009. The order has been passed by the adjudicating authority on 27.01.2009. Copy of the order has been received by the appellant s son who was the Managing Partner on 07.02.2009. Appellant s son has died on 23.06.2009. There was enough time to prefer the appeal. The appellant s son has participated in the proceedings as the Managing Partner of the firm. The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order. Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. - Decided against the assessee.

Summary

Issues:
1. Appeal against the order passed by the Appellate Tribunal.
2. Dismissal of appeal by the Commissioner (Appeals).
3. Justification of the delay in filing the appeal before the Commissioner of Central Excise (Appeals).

Issue 1: Appeal against the order passed by the Appellate Tribunal
The appeal was directed against the Final order No.1326/2010 dated 20.10.2010 passed by the Appellate Tribunal in Appeal No.ST/641/2010. The Appellate Tribunal confirmed the order passed by the Commissioner (Appeals) in Appeal No.58/2010, leading to the appellant filing this appeal before the High Court.

Issue 2: Dismissal of appeal by the Commissioner (Appeals)
The appellant, a partner in a trading company, received a show cause notice demanding service tax. The order confirming the demand was passed by the Joint Commissioner, imposing interest and penalties. The appellant's appeal before the Commissioner of Central Excise (Appeals) was dismissed as barred by time, as it was filed beyond the stipulated period of three months from the date of receipt of the decision or order.

Issue 3: Justification of the delay in filing the appeal before the Commissioner of Central Excise (Appeals)
The appellant argued that the appeal was filed within time from the date of knowledge, as he became aware of the order only after his son's death. However, the respondent contended that the appeal was not filed within the prescribed time limit and that the appellant had sufficient opportunity to file the appeal. The High Court analyzed Section 85 of the Finance Act, which allows appeals within three months from the date of receipt of the decision or order. The Court held that the appeal was clearly time-barred, as the order was received on 07.02.2009, and the appeal was filed on 05.10.2009, exceeding the permissible time limit. The Court concluded that the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time, a decision upheld by the Appellate Tribunal.

In conclusion, the High Court dismissed the appeal, stating that there was no merit in challenging the dismissal of the appeal by the Commissioner of Central Excise (Appeals) and the subsequent confirmation by the Appellate Tribunal. The Court emphasized the importance of adhering to the statutory timelines for filing appeals and upheld the decision based on the provisions of the Finance Act.