2016 (5) TMI 514 - HC - Service Tax

Delay in filing of appeal before the Commissioner(Appeals) - the order-in-original was passed by the Assistant Commissioner of Central Excise and Service Tax, Jamshedpur on 28.8.2015 and was issued on 17.09.2015 and was sent on 18.09.2015. - Held that - looking to the provision of Section 85 (3A) of the Finance Act, 1994 the period to prefer an appeal is 2 months from the date of receipt of the Order-in-Original and there is a further period of 1 month for which a delay can be condoned. In the facts of the present case the appeal was preferred by this petitioner on 19.11. 2015. Thus, this petitioner can prefer appeal with a delay condonation application along with the appeal against the Order-in-Original and the same will be decided by the Commissioner (Appeals) on its own merits, looking to the date of receipt of the Order- in-Original. This aspect of the matter has not been properly appreciated by the Commissioner(Appeals) while rejecting the appeal preferred by this petitioner - Matter restored before the Commissioner (Appeals) to decide the issue.

Summary

Issues:
Challenging order passed by Commissioner(Appeals) on grounds of being time-barred due to delay in filing appeal under Section 35 F of the Central Excise Act, 1944.

Analysis:
The writ petition challenged the order passed by the Commissioner(Appeals) on the basis of being time-barred as the appeal was filed beyond the condonable delay period of 30 days specified under Section 35 F of the Central Excise Act, 1944. The petitioner had filed the appeal three days beyond the condonable period of 30 days, which led to the rejection of the appeal by the Commissioner(Appeals) on 19.02.2016. The original order imposing liability of payment of Service Tax and penalty was passed on 28.08.2015 by the Assistant Commissioner of Central Excise and Service Tax, Jamshedpur. The order was received by the petitioner on 24.09.2015.

Upon examining the facts and circumstances of the case, it was noted that the period to prefer an appeal under Section 85(3A) of the Finance Act, 1994 is two months from the date of receipt of the Order-in-Original, with an additional period of one month for condonation of delay. In this case, the appeal was filed by the petitioner on 19.11.2015. The Court observed that the Commissioner(Appeals) did not properly consider the provision for delay condonation application and the date of receipt of the Order-in-Original by the petitioner, which was on 24.09.2015.

The Court held that the petitioner should have been given an opportunity to file a delay condonation application and provide evidence regarding the date of receipt of the Order-in-Original. Consequently, the Court quashed and set aside the order of the Commissioner(Appeals) dated 22.02.2016 and allowed the petitioner to file a delay condonation application with proper averments, allegations, annexures, and evidences. The Commissioner(Appeals) was directed to decide the delay condonation application on its own merits based on the evidence on record. The writ petition was disposed of in light of these observations.