2015 (9) TMI 836 - HC - Service Tax

Condonation of delay - whether the first appellate authority i.e., second respondent herein was justified in dismissing the appeal filed by petitioner who is a service provider on the ground that there is delay of 78 days in filing the appeal - Held that - Appeal came to be presented on 13.09.2012 and as such petitioner himself has filed an application seeking for condonation of delay of 78 days in filing the appeal. - In the absence of any proof being tendered petitioner cannot be heard to contend that this court in exercise of power under Article 226 of Constitution of India can condone such delay. When the statue prescribes the period of 90 days as the limitation to file an appeal and there being no provision under the Finance Act, 1994 to condone the delay by first appellate authority, question of entertaining such application for condonation of delay will not be in the domain of appellate authority. - No merit in this petition - Condonation denied.

Summary

Issues:
Whether the first appellate authority was justified in dismissing the appeal due to a delay of 78 days in filing the appeal.

Analysis:
The main issue in this case was whether the first appellate authority was right in dismissing the appeal filed by the petitioner, a service provider, based on a delay of 78 days in filing the appeal. The petitioner argued that the appeal was filed within time as the order under challenge was served on them on a specific date. However, the court noted that no material was produced to support this claim. The appeal was presented on 13.09.2012, and the petitioner sought condonation of the 78-day delay. The court referred to the sub-section(3) of Section 85 of Finance Act, 1994, which required the appeal to be filed within 90 days from the date of the order. The petitioner failed to provide evidence that the order was served on them on 11.09.2012, as claimed. The court cited the law laid down by the Hon'ble Apex Court and a Division Bench of the High Court, emphasizing that when a specific period of limitation is provided, and there is no provision for condonation of delay, the appellate authority cannot entertain such applications. The court dismissed the petition, stating that there was no merit in the petitioner's arguments.

The court highlighted that the Act provides for a period of limitation and the provision for condoning the delay, which overrides the provisions of the Limitation Act. It was emphasized that when there is a delay in filing the appeal beyond the specified period, the appellate authority cannot condone the delay. The court referred to previous judgments to support this interpretation and concluded that the order passed by both authorities was legal and valid, warranting no interference. The substantial question of law was answered in favor of the revenue and against the assessee. Consequently, the appeal was dismissed, and the court refrained from expressing any opinion on the merits of the claim.

In conclusion, the court found that the first appellate authority was justified in dismissing the appeal due to the delay in filing, as the petitioner failed to provide sufficient evidence to support their claim of timely filing. The court upheld the decision based on the specific period of limitation provided by the Act and the lack of provision for condonation of such delays.