2017 (1) TMI 612 - AT - Service Tax

Maintainability of appeal - condonation of delay - a delay of 48 days after the expiry of due date for filing the appeal - Held that - as per Section 128, the appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order. Sub-section(1) of Section 35 ibid makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days - the legislature intended the appellate authority to entertain the appeal by condoning the delay only upto 30 days after the expiry of 60 days which is the normal period of preferring appeal. Appeal dismissed - delay not condoned - decided against appellant.

Summary

Issues:
1. Appeal filed beyond the period of limitation.
2. Condonation of delay application.
3. Interpretation of statutory provisions regarding appeal filing timeline.
4. Commissioner's power to condone delay.

Analysis:
1. The appeal was filed beyond the period of limitation, leading to its rejection by the Commissioner (A). The appellant, a multispecialty hospital, voluntarily registered for service tax under Cosmetic and Plastic Surgery in the Financial Year 2009-2010. Despite being under exemption until July 15, 2010, the appellant started paying service tax from July 16, 2010. A subsequent visit by service tax staff revealed non-collection of service tax from July 16, 2010, to August 31, 2010, resulting in a show-cause notice for penalties amounting to ?90,000 and ?9,09,520 under CENVAT Credit Rules (CCR), 2004. The appellant filed an appeal before the Commissioner (A) on February 19, 2014, 17 days after the due date of February 2, 2014, as per the Additional Commissioner's order, leading to the rejection of the appeal due to a delay exceeding the condonable limit of 30 days.

2. The appellant sought condonation of the 17-day delay in filing the appeal, arguing that the delay was not inordinate and should have been considered by the Commissioner (A). The appellant's consultant contended that the appeal should have been decided on merit after condoning the delay. However, the Commissioner (A) dismissed the appeal without delving into the case's merits, citing the delay as exceeding the condonable limit.

3. The Commissioner (A) justified the dismissal of the appeal based on statutory provisions mandating a 60-day period for filing appeals, with the power to condone delays up to 30 days. The Commissioner (A) referenced the Hon'ble Supreme Court judgment in Singh Enterprises vs. CCE, Jamshedpur, emphasizing that condoning delays beyond 30 days falls outside the Commissioner's power.

4. The Tribunal, after hearing both parties and examining the records, upheld the Commissioner (A)'s decision, citing Section 128 of the Customs Act which specifies the appeal filing timeline. Relying on the Hon'ble Supreme Court judgment in Singh Enterprises vs. CCE, Jamshedpur, the Tribunal affirmed that the legislative intent limits the appellate authority's power to condone delays to 30 days beyond the initial 60-day appeal period. Consequently, the Tribunal found no fault in the impugned order and dismissed the appellant's appeal.

This detailed analysis highlights the key issues surrounding the appeal filed beyond the period of limitation, the condonation of delay application, the interpretation of statutory provisions, and the Commissioner's authority to condone delays, culminating in the Tribunal's decision to uphold the dismissal of the appeal.