2016 (10) TMI 834 - HC - Service Tax

Restoration of appeal - condonation of delay - Section 85(3A) of the Finance Act, 1994 - Held that - it appears that the Order-in-Original No. 17/S./ Tax/Addl.Commr./2015 dated 29th June, 2015 was received by this petitioner on 6th July, 2015 and thereafter appeal was preferred before the Commissioner (Appeals) on 7th September, 2015. It further appears from the facts of the case that this appellant has to prefer an appeal by 6th September, 2015, but, since 6th September, 2015 was a Sunday, appeal was filed on 7th September, 2015. Even 5th September, 2015 was not a working day for the Central Government offices as it was a Saturday. Hence, there is no delay in preferring the appeal by this appellant. The Order-in-Appeal No. 83 JSR/2015-16 dated 19th Jan, 2016 passed by the Commissioner, Central Excise and Service Tax (Appeals) is quashed and set aside - matter remanded - Order-in Appeal No. 83 JSR/2015-16 restored to its original file with the same number and the same will be decided on its merit - petition allowed - decided in favor of petitioner.

Summary

Issues involved: Appeal against Order-in-Appeal dismissal on the grounds of being time-barred under Section 85(3A) of the Finance Act, 1994.

Analysis:
1. The writ petition challenged the Order-in-Appeal No. 83 JSR/2015-16 dated 19th Jan, 2016, issued by the Commissioner, Central Excise and Service Tax (Appeals), which dismissed the appellant's appeal as time-barred. The crux of the issue was the timeline for filing the appeal as per Section 85(3A) of the Finance Act, 1994.

2. The petitioner received the Order-in-Original No. 17/S./ Tax/Addl.Commr./2015 on 6th July, 2015, and subsequently filed the appeal before the Commissioner (Appeals) on 7th September, 2015. The contention was that the appeal was filed within the prescribed time limit, despite the deadline being 6th September, 2015, which fell on a Sunday, with the previous day being a Saturday, a non-working day for Central Government offices.

3. The High Court emphasized that a hyper-technical approach should not have been adopted by the Commissioner (Appeals) in this case. It was noted that delays in filing appeals are often condoned even on oral requests, and overly stringent orders like the one in question unnecessarily burden the High Court with additional workload.

4. Consequently, the High Court quashed and set aside the Order-in-Appeal No. 83 JSR/2015-16 dated 19th Jan, 2016, remanding the matter for reconsideration. The original appeal was restored to its file for a fresh decision on its merits, indicating a favorable outcome for the petitioner.

5. The writ petition was allowed and disposed of in favor of the petitioner. Additionally, the Registrar General of the court was directed to forward a copy of the order to the Chief Commissioner, Central Excise and Service Tax, with instructions to provide guidance to Commissioners (Appeals) to avoid issuing overly technical orders in the future, thus aiming to prevent similar situations from arising again.