2014 (9) TMI 65 - AT - Service Tax

Condonation of delay - appeal has been filed after the expiry of 91 days from the date of communication of the order - penalties under Section 78 - Held that - appeal shall be presented within two months from the date of receipt of the decision or order and if the appellant is prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, the appellate authority can condone the delay and allow the appeal to be presented within a further period of one month. Thus, the total time period of 3 months is available to the appellant to file the appeal. In their application for condonation of delay, the appellant has pleaded that they were awaiting for decision on the same issue in respect of other Branches, and, therefore, the delay occurred - appeal has been filed on 17/02/2014. The General Clauses Act defines a month as a British Calendar month and it is not defined in terms of number of days. Therefore, in the present case, the appeal has been filed in time i.e. within the condonable period. Therefore, the period is not beyond the condonable period and the appellate authority should have condoned the delay. matter remanded back - Delay condoned.

Summary

Issues:
1. Timeliness of filing the appeal against the Order-in-Appeal dated 03/03/2014.
2. Proper application of Rule 6(3) and 6(5) of CENVAT Credit Rules, 2004.

Analysis:
Issue 1: The appeal was dismissed by the lower appellate authority as time-barred since it was filed on 17/02/2014, exceeding the 91-day limit from the date of receiving the adjudication order on 18/11/2013. The appellant argued that the delay was due to awaiting a decision on the same issue for other branches. The Tribunal noted that under Section 85(3A) of the Finance Act, 1994, an appeal must be filed within two months, extendable by one month for sufficient cause. The appellant filed the appeal on 17/02/2014, falling within the condonable period. The Tribunal found the reason for delay satisfactory and remanded the matter back to the appellate authority for a decision on merits, emphasizing the appellant's right to be heard.

Issue 2: The appellant contended that the lower appellate authority did not properly apply Rule 6(3) and 6(5) of CENVAT Credit Rules, 2004. However, the Tribunal did not delve into this issue as it focused on the timeliness of the appeal. The Tribunal allowed the appeal by way of remand, indicating that the stay petition was also disposed of. The decision highlighted the importance of considering appeals within the condonable period and ensuring due process by allowing the appellant to present their case before a denovo order is passed.

This judgment by the Appellate Tribunal CESTAT MUMBAI, delivered by P R Chandrasekharan, J., provides a detailed analysis of the timeliness of filing an appeal against an Order-in-Appeal and emphasizes the need for a fair consideration of appeals within the statutory time limits. The decision showcases the Tribunal's commitment to upholding procedural fairness and ensuring that appellants have the opportunity to present their case effectively before a final decision is made.