2008 (5) TMI 166 - AT - Service Tax

Filing of appeal and entertaining of appeal are two different things appellant, PSU plea that delay caused due to COD clearance, is not acceptable filing of the appeal cannot put on hold on the ground that the clearance has not been obtained - appeal can be filed even without getting COD clearance - delay cannot be condoned which is of more than six years, and we accordingly reject the condonation of delay application and dismiss the appeal as time-barred.

Summary

Issues:
1. Condonation of delay in filing an appeal under Section 35B(3) of the Central Excise Act.
2. Condonation of delay in filing a cross-objection.
3. Justification for delay in filing the appeal.
4. Interpretation of the Supreme Court decision in ONGC case regarding COD clearance.

Analysis:
1. The appeal was filed against the order of the Commissioner of Central Excise dated 9-8-2001, but the appeal itself was filed on 9-3-2007, beyond the three-month limitation period as per Section 35B(3) of the Central Excise Act. The appellant sought condonation of delay, citing reasons such as pending matters at various levels, Law Ministry's opinion in their favor, and COD consent received on 12-5-2005. However, the Tribunal found these reasons insufficient. The Tribunal emphasized that the delay was unjustifiable, especially considering the significant period of more than six years. It was held that the delay could not be condoned, and the appeal was dismissed as time-barred.

2. The Revenue also filed a cross-objection, which was also time-barred. The Tribunal noted that the cross-objection could only be entertained if the appeal was admitted for hearing. Since the appeal was dismissed due to time-barred filing, the Tribunal did not consider the condonation of delay in filing the cross-objection, which was consequently dismissed as well.

3. The appellant argued that the delay in filing the appeal was due to various reasons, including the belief that the tax would be reduced or waived, pending applications, and COD clearance process. However, the Tribunal clarified that the delay was not justified, even if certain steps were taken towards clearance. The Tribunal distinguished between filing an appeal and obtaining clearance, emphasizing that the appeal should have been filed within the limitation period, regardless of pending clearances or approvals.

4. The Tribunal discussed the interpretation of the Supreme Court decision in the ONGC case regarding COD clearance. It was clarified that while COD clearance is required for maintaining the appeal, it does not prevent the filing of the appeal within the limitation period. The Tribunal highlighted the distinction between filing an appeal to avoid limitation and seeking clearance later. The decision emphasized that the delay in filing the appeal could not be excused based on pending clearances or approvals, ultimately leading to the dismissal of the appeal and the cross-objection.