2009 (5) TMI 75 - AT - Service Tax

Appeal to Commissioner (Appeal) delay in filing appeal power to condone the delay held that - The Commissioner (Appeals) has no power to condone the delay in filing the appeal beyond the further period of three months as laid down in terms of proviso to section 85(3) of the Finance Act 1994. The delay of 386 days is beyond the powers of the Commissioner (Appeals) to condone. Therefore he has rightly dismissed the appeal as not maintainable. The Order of the Commissioner (Appeals) is legal and proper. It does not require any interference. The appeal filed by the appellants is dismissed

Summary

Issues:
1. Condonation of delay in filing appeal.
2. Stay petition for recovery of service tax.
3. Interpretation of section 85(3) of the Finance Act, 1994.

Condonation of Delay in Filing Appeal:
The appellant filed an appeal against an order-in-appeal passed by the Commissioner of Central Excise (Appeals), Mumbai-II. The appellant sought condonation of a 14-day delay in filing the appeal due to their consultant's eye injury. The Tribunal allowed the application for Condonation of Delay, considering the reason provided for the delay satisfactory. The appeal itself was taken up for disposal after examining the records and hearing the learned SDR.

Stay Petition for Recovery of Service Tax:
The stay petition was filed to halt the recovery of service tax amounting to Rs. 3,12,758, along with interest and penalties imposed under sections 76, 77, and 78 of the Finance Act, 1994. The appellant argued that the appeal had not been heard on merit, and the appeal before the Commissioner (Appeals) was dismissed based on the ground of limitation. The Commissioner (Appeals) had dismissed the appeal as it was filed beyond the prescribed limitation period under section 85(3) of the Finance Act, 1994. The Tribunal agreed with the learned SDR's submission that the Commissioner (Appeals) had no power to condone the delay in filing the appeal beyond the further period of three months as per the proviso to section 85(3). Consequently, the appeal filed by the appellants was dismissed, and the stay petition was disposed of accordingly.

Interpretation of Section 85(3) of the Finance Act, 1994:
The Tribunal concurred with the learned SDR's argument that the provisions of section 85(3) of the Finance Act, 1994, are similar to section 35 of the Central Excise Act, 1944. Citing the judgment in the case of Singh Enterprises v. CCE, it was held that the Commissioner (Appeals) does not have the authority to allow the appeal to be presented beyond the further period of 30 days. The delay of 386 days in filing the appeal was deemed beyond the Commissioner (Appeals)' power to condone. Consequently, the Commissioner (Appeals) rightfully dismissed the appeal as not maintainable, and the Tribunal upheld the legality of the Commissioner (Appeals)'s order, requiring no interference.