2017 (10) TMI 447 - AT - Service Tax

Condonation of delay in filing appeal - delay of one day in filing the appeals - whether the appeals filed by the appellant before the first appellate authority is hit by limitation or otherwise? - Held that - As per the provisions of Section 85(3) of the Finance, 1994, an assessee is required to file an appeal against Order-in-Original with the first appellate authority within two months from the date of communication of the said Order-in-Original; can file an appeal before the adjudicating authority with an application for condonation of delay within 30 days on expiry of two months statutory period granted to them. As per the provisions of Section 85(3) of the Finance Act, 1994, the limitation for filing the appeal is within two months starts from 3rd March 2016 and ends on 2.5.2016. Further, condonable period of 30 days is granted to filing the appeal with an application for condonation of delay, which according to the Revenue starts on 3.5.2016, while it is the case of the appellant that the first day i.e., 3.5.2016 has to be excluded and the period of one month for filing an appeal with application for condonation of delay starts from 4.5.2016 and they have filed appeal on 3.6.2016 which is the last day for filing the appeal. Following the ratio of the Tribunal s decision in the case of Kouni Travels Pvt. Ltd. 2009 (9) TMI 208 - CESTAT, BANGALORE , where it was held that the time limit for condoning the delay is to be construed by excluding the first day of the period of 30 days within which the first appellate authority can condone the delay - there is no delay in filing the appeal before the first appellate authority - matter back to the first appellate authority with a direction to restore the appeal to its original number - appeal restored.

Summary

Issues:
1. Whether the appeals filed before the first appellate authority were within the time limit or not.

Analysis:
The main issue in this case revolves around the timeliness of the appeals filed by the appellant before the first appellate authority. The appellant argued that there was no delay in filing the appeal and referred to the decision in the case of Kouni Travels Pvt. Ltd. to support their position. On the other hand, the Departmental Representative highlighted a one-day delay in filing the appeals and cited the judgment of the Hon'ble High Court of Delhi in a different case. The key question was whether the appellant had filed the appeals within the stipulated time frame.

In analyzing the issue, the provisions of Section 85(3) of the Finance Act, 1994 were crucial. The timeline for filing the appeal and the condonable period for delay were meticulously examined. The date chart presented by the appellant was scrutinized to determine the starting and ending dates for filing the appeal. The appellant's argument, based on excluding the first day of the condonable period, was supported by the precedent set in the case of Kouni Travels Pvt. Ltd., as decided by the Division Bench of the Tribunal.

Regarding the judgment cited by the Departmental Representative, it was noted that the issue in that case was distinct from the one at hand, which focused on the confiscation of goods under the Customs Act. The Tribunal's decision in the case of Kouni Travels Pvt. Ltd. was deemed applicable due to its relevance to the present matter. Consequently, it was concluded that there was no delay in filing the appeal before the first appellate authority.

Given the above analysis, the Tribunal held that the appeal should not have been dismissed solely on the grounds of limitation by the first appellate authority. Therefore, the matter was remitted back to the first appellate authority with directions to reconsider the appeal on its merits, ensuring adherence to the principles of natural justice. The appeal was ultimately disposed of in favor of the appellant.

This comprehensive analysis of the timeliness of the appeals and the application of relevant legal provisions and precedents demonstrates the meticulous approach taken by the Tribunal in arriving at its decision.