2017 (1) TMI 1027 - AT - Service Tax

Condonation of delay in filing an appeal before Commissioner (appeals) - 100% EOU - refund claim of CENVAT credit availed on input services used for providing the output services exported - Held that - as per Section 85(3A), the appeal before the Commissioner (A) has to be filed within 60 days from the date of communication of the order and in this case admittedly order was received on 20.10.2015 - Order-in-Original were filed by the appellant only on 9.3.2016 i.e., almost after 140 days. Reliance placed in the case of Singh Enterprises vs. CCE, Jamshedpur 2007 (12) TMI 11 - SUPREME COURT OF INDIA , where it was held that the proviso to 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. Refund rightly rejected - Appeal dismissed - decided against appellant.

Summary

Issues:
Appeal dismissal on account of time bar.

Analysis:
The appellant, a 100% EOU providing technology-based web development solutions, filed refund claims seeking refund of unutilized CENVAT credit paid on input services used for exported output services during specific periods. The Assistant Commissioner rejected all refund claims, leading to appeals filed before the Commissioner (A). However, the appeals were dismissed due to being filed after 140 days from the receipt of the Order-in-Original. The appellant argued that the delay was due to the consultant's fault and requested leniency in condoning the delay to decide on the merits. On the contrary, the AR contended that the appeals were time-barred under Section 85(3A) of the Finance Act, 1994, which allows a maximum of 90 days for filing appeals. The AR cited relevant judgments to support this position.

In response, the appellant relied on a different judgment, which the presiding member found inapplicable to the case. After considering both parties' submissions and reviewing the legal provisions, the presiding member upheld the dismissal of the appeals. Citing the Supreme Court's decision in Singh Enterprises vs. CCE, Jamshedpur, the presiding member emphasized the limited scope for condoning delays beyond the prescribed period. Consequently, the appeals were dismissed, affirming the Commissioner's decision based on the statutory time limit for filing appeals.

In conclusion, the presiding member found no fault in the Commissioner's decision to dismiss the appeals due to being time-barred, in accordance with the provisions of Section 85(3A) of the Finance Act, 1994, and the judicial interpretation provided by the Supreme Court in relevant cases. The appeals were therefore rejected based on the legal time constraints for filing appeals in tax matters.