2015 (12) TMI 1359 - AT - Service Tax

Condonation of delay - Power of commissioner to condone delay beyond condonable period - Held that - Supreme Court clearly held that the Commissioner (Appeals) has no power to condone the delay after expiry of 30 days period as provided under Section 85 of the Finance Act, 1994. We agree with the submission of the Revenue that there is no power of Commissioner (Appeals) to condone the delay. The wrong mentioning of the period of limitation in the preamble cannot override the statutory provision. We also notice that the Tribunal in the case of Raghav Industries (2008 (5) TMI 537 - CESTAT, NEW DELHI) and Sagar Enterprises (2009 (4) TMI 690 - CESTAT, CHENNAI) dismissed the appeal on the similar ground. - reason to interfere with the order of the Commissioner (Appeals) - Decided against assessee.

Summary

Issues:
1. Appeal filed beyond the condonable period under Section 85 of the Finance Act, 1994.
2. Power of Commissioner (Appeals) to condone delay in filing appeal.
3. Effect of wrong mentioning of the period of limitation in the preamble of the adjudication order.

Analysis:
1. The main issue in this appeal was that the Commissioner (Appeals) dismissed the appeal as it was filed beyond the condonable period under Section 85 of the Finance Act, 1994. The appellant received the adjudication order on 07-08-2012, and the appeal should have been filed by 05-11-2012, including the condonable period. However, the appeal was filed on 01-02-2013, leading to the rejection by the Commissioner (Appeals) due to lack of power to condone the delay beyond the statutory limitation period.

2. The appellant argued that the preamble of the adjudication order mentioned a 3-month period for filing the appeal, but the limitation under Section 85 was amended on 28.5.2012. The appellant contended that they should not be penalized for the Revenue's error and relied on a Tribunal decision in a similar case. On the other hand, the Revenue pointed out that the Commissioner (Appeals) does not have the authority to condone the delay beyond the statutory limit, citing a Supreme Court judgment and other Tribunal decisions supporting this position.

3. The Tribunal analyzed the legal provisions and previous decisions. It noted the Supreme Court's ruling in a similar case, emphasizing that the Commissioner (Appeals) lacks the power to condone the delay beyond the specified period under Section 85 of the Finance Act, 1994. The Tribunal agreed with the Revenue's argument that the incorrect mention of the limitation period in the adjudication order preamble cannot override the statutory provisions. Referring to prior Tribunal decisions, the Tribunal upheld the dismissal of the appeal by the Commissioner (Appeals) based on the delay in filing beyond the condonable period.

In conclusion, the Tribunal found no grounds to interfere with the Commissioner (Appeals)'s decision and rejected the appellant's appeal, affirming the lack of authority to condone the delay in filing beyond the statutory limit.