2019 (2) TMI 1822 - AT - Service Tax

Maintainability of appeal - time limitation - Appeals to the Commissioner of Central Excise (Appeals) - Section 85(3A) of the Finance Act - appeal dismissed as having been filed beyond the period of two months and the extended period of one month from the date of communication of the Order - HELD THAT - A perusal of sub section (3A) of Section 85 clearly indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to service tax, interest or penalty. It further provides that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month - The discretion of the Commissioner to condone the delay is, therefore, circumscribed by the condition set out in proviso and the delay can be condoned only if the appeal is presented within a further period of one month after the expiry of the statutory period of two months, provided of course, he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of two months. In the present case, admittedly, the order of the adjudicating authority was received by the appellant on 20 September, 2013 but the appeal was presented before the Commissioner on 05 February, 2016. It was clearly not presented within the period of two months nor within the extended period of one month - The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub section (1) of Section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ground of limitation. The Commissioner (Appeals), therefore, did not commit any illegality in dismissing the appeal - appeal dismissed.

Summary

Issues:
1. Timeliness of filing appeal before Commissioner (Appeals) within the stipulated period.
2. Condonation of delay in filing appeal under Section 85(3A) of the Finance Act.
3. Interpretation of the proviso to Section 85(3A) regarding the Commissioner's discretion to allow further time for appeal.

Analysis:
1. The judgment concerns two appeals challenging the dismissal by the Commissioner (Appeals) of appeals filed beyond the prescribed period of two months and the extended one-month period from the date of communication of the order. The Order in question was passed by the Additional Commissioner of Customs & Central Excise on 30 August, 2013, and served on the appellant on 20 September, 2013. The appeals were filed on 05 February, 2016, almost two years and five months later, leading to their dismissal by the Commissioner (Appeals) citing the Supreme Court's decision in Singh Enterprises vs. Commissioner of C. Ex., Jamshedpur.

2. The appellant contended that there was sufficient cause for the delay, supported by an affidavit stating that the appellant's Counsel was under the impression that the appeal had been filed earlier. The Counsel cited a Tribunal decision and a Supreme Court case to argue for the condonation of the delay. However, the Department's Representative relied on the Singh Enterprises case and argued that the Tribunal's power to condone the delay is limited to one month after the statutory two-month period, as per Section 85(3A) of the Finance Act.

3. The Tribunal analyzed Section 85(3A) of the Finance Act, which mandates filing an appeal within two months of receiving the order, with a provision for the Commissioner to allow an additional one-month period in case of sufficient cause. The Tribunal highlighted that the Commissioner's discretion to condone the delay is restricted by the proviso, allowing for an extension of only one month after the initial two-month period. Referring to the Supreme Court's decision in Singh Enterprises and the Mumbai Tribunal's decision in Muktabai Govind Pawar, it was concluded that the Commissioner (Appeals) acted within the legal framework by dismissing the appeal due to the delay in filing, as the law does not provide for condonation beyond the extended one-month period.

This detailed analysis of the judgment provides a comprehensive overview of the issues related to the timeliness of filing appeals and the interpretation of Section 85(3A) of the Finance Act regarding the condonation of delays in filing appeals before the Commissioner (Appeals).