2020 (1) TMI 1326 - AT - Service Tax

Condonation of delay in filing appeal - time limitation - appeal before him was filed after a period of 3 months and 10 days - power of Commissioner (Appeals) to condone the delay beyond three months - HELD THAT - That before the Commissioner (Appeals) the Order-in-Original 17/ST-2013 dated 21.03.2013 was challenged. The same was acknowledged to be received by the appellant on 23.06.2014. However, the appeal was filed on 02.12.2014 though it was to be filed on or before 22.08.2014 thereby causing a delay of 3 months and 10 days in filing the same before Commissioner (Appeals). We observe that the applicant had, therefore, filed an application praying for condonation of delay before Commissioner (Appeals) and order of Commissioner (Appeals) is in respect of the said application praying for condonation of delay. In view of Section 35 of Central Excise Act, delay was not condoned. As a result where of the appeal could not have sustained. In the present case, Commissioner (Appeals) has not passed any order of confirming any demand against the dead person. The Order was squarely on the ground of limitation. The same has been upheld by this Tribunal only because of the statutory mandate upon the Commissioner (Appeals) to not to condone the delay beyond three months. Application dismissed.

Summary

Issues:

1. Rectification of mistake in final order due to delay in filing appeal before Commissioner (Appeals).
2. Power of Tribunal to condone delay beyond statutory period.
3. Effect of death of appellant during pendency of appeal proceedings.
4. Commissioner (Appeals) order based on limitation grounds.

Analysis:

1. The judgment revolves around rectification of a mistake in the final order due to a delay in filing the appeal before the Commissioner (Appeals). The Tribunal initially dismissed the appeal before it on the grounds that the appeal was filed after the statutory period of 60 days, with a further 30-day condonable delay. The appellant argued that the Tribunal had the power to condone delays beyond the statutory period if sufficient cause was shown. The appellant highlighted the death of the proprietor during the appeal proceedings, which was not considered by the Commissioner (Appeals) or the Tribunal, leading to the request for rectification of the final order.

2. The Tribunal, while considering the arguments, reiterated the statutory limitation period under the Central Excise Act, which the Commissioner (Appeals) had relied upon to dismiss the appeal. The Tribunal upheld the Commissioner (Appeals) decision based on Section 35 of the Central Excise Act, which does not allow for the condonation of delays beyond the prescribed period. The judgment referenced a previous decision by the Hon'ble Apex Court to emphasize the importance of showing a sufficient cause for delay, ultimately supporting the Commissioner (Appeals) order.

3. The judgment also addressed the impact of the death of the appellant during the pendency of the appeal proceedings. It was noted that no demand could be confirmed or recovery proceedings initiated against a deceased person, as established by previous legal precedents. However, in this case, the Commissioner (Appeals) did not confirm any demand against the deceased appellant but based the decision solely on the grounds of limitation, which was upheld by the Tribunal.

4. Ultimately, the Tribunal dismissed the applications, emphasizing that the Commissioner (Appeals) rightly based the order on limitation grounds, as mandated by the Central Excise Act. The Tribunal found no infirmity in the order under challenge, as the statutory requirement to not condone delays beyond three months was followed. Therefore, both applications were dismissed, and the judgment was pronounced in open court on 15.01.2020.