2017 (1) TMI 102 - AT - Service Tax

Condonation of delay - time limitation - It is on record that the Assistant Commissioner s order dated 17.2.2012 was received by the appellant on 27.2.2012. The appeal against the Additional Commissioner s order was filed before the Commissioner (Appeals) on 28.3.2013 - whether the appellant s appeal before the Commissioner (Appeals) was time barred and whether the period of delay was far beyond that which can be condoned by the Commissioner (Appeals)? Held that - Section 35 of the Central Excise Act, 1944 provides than an appeal may be filed to the Commissioner (Appeals) against any decision or order passed by the Central Excise officer lower in rank than the Commissioner within the period of 60 days from the date of communication of such order. Commissioner (Appeals) has also been given the discretion to condone the delay in such filing if the appeal is filed within a further period of 30 days beyond the period of 60 days allowed. In the present case, I find that the appeal is filed after the expiry of 9 months and 27 days. It is obvious that the delay in filing the appeal is much beyond the period of 30 days for which Section 35 vested the discretion with the Commissioner (Appeals). Since appeal has been filed beyond such period, it has been rightly dismissed by the Commissioner (Appeals). Appeal dismissed - decided against appellant.

Summary

Issues:
1. Appeal against Order-in-Appeal dated 28.3.2013 passed by the Commissioner (Appeals), New Delhi.
2. Time-barred appeal before the Commissioner (Appeals) - Delay in filing the appeal.

Analysis:
The appellant, a Government company, provided logistic arrangements for the Kailash Manasarovar Yatra and charged pilgrims for the services. A show cause notice was issued for demand of service tax amounting to ?20,19,011 for the period from 01/4/05 to 31/3/09. The Additional Commissioner confirmed a service tax demand of ?18,04,490 along with interest and penalties. On appeal to the Commissioner (Appeals), the appeal was dismissed as time-barred since it was filed after 9 months and 27 days from the relevant date, exceeding the condonable period. The appellant's plea regarding missing pages of the order was not accepted. The main issue was whether the appeal was time-barred before the Commissioner (Appeals).

The appellate tribunal noted that the appeal was filed after the prescribed period of 60 days for filing an appeal, with an additional 30-day condonable period. However, the appeal was filed after 9 months and 27 days, far exceeding the condonable period. The tribunal upheld the dismissal of the appeal by the Commissioner (Appeals) citing Section 35 of the Central Excise Act, 1944, which allows for condonation of delay within a specified period. The tribunal also referred to a decision by the Hon'ble High Court of Calcutta that supported the dismissal of the appeal due to the excessive delay in filing.

In conclusion, the tribunal dismissed the appeal due to the significant delay in filing it, which exceeded the condonable period allowed by law. The decision was based on the provisions of Section 35 of the Central Excise Act, 1944, and supported by a relevant judgment from the Hon'ble High Court of Calcutta.