2009 (8) TMI 89 - AT - Service Tax

Appeal before Comm(A) Power to condone delay - Commissioner (Appeals) has dismissed the appeal filed by the assessee on the ground of limitation by holding that he does not have powers to condone the delay beyond the period of 30 days.- held that - appeal was in fact filed within time but was submitted in the wrong office. The Tribunal in the above case has considered various precedent decisions laying down that the time spent before the wrong forum should not be taken into consideration while calculating the limitation. The appellants have admittedly been pursuing at each level for transfer of the appeal papers to right forum - It was equally the duty of Joint Commissioner, before whom the appeal was wrongly filed, to transfer the papers to the right office. If that would have been done, there would have been no question of any delay requiring any condonation appeal considered to be filed within time

Summary

Issues: Appeal dismissal on ground of limitation by Commissioner (Appeals) due to delay beyond 30 days.

In this judgment by the Appellate Tribunal CESTAT AHMEDABAD, the issue at hand was the dismissal of an appeal by the Commissioner (Appeals) due to a perceived delay beyond the stipulated period of 30 days. The appellant had filed the appeal with the Original Adjudicating Authority on 10.12.2007, but it was mistakenly submitted to the office of Joint Commissioner of Service Tax instead of the Commissioner (Appeals). The appellant argued that the appeal was filed within the limitation period, albeit in the wrong office, and thus no condonation of delay should be required. The Tribunal considered previous decisions, including Maruti Udyog Limited vs. Commissioner of Customs, Kandla, and held that time spent before the wrong forum should not be counted towards the limitation period. The Tribunal agreed with the appellant's advocate that the appeal was indeed filed within time, and the delay was a result of efforts to transfer the appeal papers to the correct office. Consequently, the Tribunal ruled that since the appeal was filed within the limitation period, there was no delay necessitating condonation, and the question of the Commissioner (Appeals) having powers to condone such delay did not arise.

Furthermore, the Tribunal dispensed with the condition of pre-deposit and proceeded to take up the appeal itself. The impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for a decision on the merits. The stay petition and the appeal were disposed of accordingly. The judgment highlighted the importance of the correct filing of appeals within the limitation period, emphasizing that efforts to rectify filing errors should not result in undue delays or the need for condonation of such delays. The decision underscored the principle that the time spent before the wrong forum should not prejudice the appellant's rights in meeting the statutory timelines for filing appeals.