2013 (10) TMI 41 - AT - Service Tax

Condonation of delay - Order not received - Held that - appellant/ assessee had not received the adjudication order at all since the adjudication order was passed ex-parte. Such a plea was never raised before the Commissioner. The appellant to have pleaded before the Commissioner (Appeals) in its application for condonation of delay, all the relevant and material facts to substantiate the claim either that there was no delay in preferring the appeal or that there was valid justification for the delay in preferring the appeal and that such delay was within the permissible limits and within the jurisdiction of the appellate Commissioner to condone. Without any such pleading the condonation of delay application was filed before the lower appellate authority. The Commissioner (Appeals), under the proviso to Section 85(3) had power to condone the delay of only a further 3 months - Decided against assessee.

Summary

Issues:
1. Appeal against rejection on the bar of limitation
2. Application for condonation of delay
3. Jurisdiction of appellate authority to condone delay

Analysis:
1. The appellant filed an appeal against the order-in-appeal dated 11.02.2013, where the Commissioner (Appeals) rejected the appeal on the bar of limitation. The appellant sought condonation of delay, stating that due to medical reasons, the appeal could not be filed within the stipulated period. However, the application for condonation lacked relevant facts, such as the date of receipt of the adjudication order, which is crucial for determining the timeliness of the appeal filing.

2. The appellate authority rejected the appeal, citing Section 85(3) of the Finance Act, 1994, which mandates filing the appeal within three months from the date of receipt of the order. The appeal was filed after a delay of over 20 months, and the appellate authority deemed it beyond their jurisdiction to condone such a significant delay under the Act. The appellant claimed non-receipt of the adjudication order, as it was passed ex-parte, but this argument was not raised before the Commissioner.

3. The Commissioner (Appeals) had the power to condone a delay of only a further 3 months under the proviso to Section 85(3). Since the appellant failed to provide substantial evidence or justification for the delay in filing the appeal within the permissible limits, the rejection of the appeal on the bar of limitation was upheld. The judgment concluded that the appeal lacked merit and was dismissed accordingly, highlighting the importance of complying with procedural timelines and providing necessary evidence for condonation of delay in legal proceedings.