2008 (11) TMI 92 - AT - Service Tax

Appeal memo of appeal without verification part filed with the Superintendent was within time subsequently appeal filed with Comm.(A) after expiry of time limit, should be treated as filed on the date it was submitted to Supdt. hence there was no delay in preferring appeal - Commissioner will have to deal with that appeal on merits, of course, subject to Section 35F of CEA - appeal is allowed by way of remand since delay is satisfactorily explained, condonation of delay is granted

Issues:
1. Condonation of delay in filing appeal before the Tribunal.
2. Correctness of the remedy sought against the order-in-appeal.
3. Appeal against the order of the Commissioner (Appeals) and the issue of delay.
4. Consideration of submissions regarding the appeal filed with the Superintendent.
5. Decision on the appeal and remand order.

Issue 1: Condonation of Delay in Filing Appeal:
The appellants sought condonation of a 3-month and 9-day delay in filing the appeal before the Tribunal. The delay was attributed to confusion within the appellant-corporation regarding the appropriate legal remedy against the order of the Commissioner (Appeals). Despite the preamble in the impugned order suggesting the correct remedy under Section 35B of the Central Excise Act, the appellants argued that the correct remedy was under Section 86 of the Finance Act, 1994. The Tribunal found that the appellants acted diligently in seeking legal opinions and approvals, and there was no deliberate inaction on their part. Citing apex court rulings, the Tribunal held that the delay needed to be condoned in the interest of justice.

Issue 2: Correctness of the Remedy Sought:
The Tribunal noted that the preamble in the impugned order did not offer correct guidance as it suggested a wrong provision of law for the appeal. Despite the confusion caused by the preamble, the Tribunal found that the appellants' explanation for the delay was genuine and that they were genuinely concerned about challenging the appellate Commissioner's order. The Tribunal disregarded the preamble and focused on the veracity of the appellants' explanation, ultimately deciding to condone the delay in filing the appeal.

Issue 3: Appeal Against the Order of the Commissioner (Appeals) and Delay:
The appeal before the Tribunal was against an order of the Commissioner (Appeals) that was not on merits. The Corporation had initially filed an appeal with the Superintendent of Service Tax, which was later realized to be incorrect. A fresh appeal was filed with the Commissioner (Appeals) after the delay. The Corporation argued that the time taken for the initial appeal should be excluded for the purpose of computing the limitation period. The Tribunal reviewed the chronology of events and explanations provided by the Corporation, ultimately finding that there was no delay in filing the appeal before the Commissioner (Appeals).

Issue 4: Consideration of Submissions Regarding Appeal Filed with Superintendent:
The appellant raised concerns that their submissions were not considered by the Ld. Commissioner (Appeal). The Tribunal examined the memo of appeal filed with the Superintendent and found that it was essentially a memo of appeal to the Commissioner of Central Excise (Appeals) with all essential particulars. The Tribunal concluded that the fresh appeal filed with the Commissioner (Appeals) should be deemed to have been filed on the date of the initial appeal, thereby eliminating any delay in filing the appeal.

Issue 5: Decision on the Appeal and Remand Order:
In order to allow the Ld. Commissioner (Appeals) to address the appellant's appeal on merits, the Tribunal set aside the impugned order and allowed the present appeal by way of remand. The stay application was also disposed of in the process, ensuring that the appeal would be dealt with in accordance with the law and principles of natural justice.

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