2018 (1) TMI 1273 - AT - Service Tax

Rectification of mistake - time limitation - maintainability of appeal - Held that - It is correct that Section 74 prescribes two years time for filing rectification of mistake - Taking into consideration that the appeal has been filed within the prescribed period, after rejection of the ROM application, the appeal is not time-barred. The statute provides for filing such an application for rectification of mistake. Therefore, Commissioner (Appeals) ought to have considered the appeal to have been filed within the time. The rejection of the appeal on the ground of time-bar is unjustified - matter is remanded to the Commissioner (Appeals) who is directed to consider the appeal on merits - appeal allowed by way of remand.

Summary

Issues Involved:
Appeal rejection on grounds of time-bar under VCES Scheme; Consideration of rectification application under section 74 of Finance Act, 1994; Calculation of limitation period for filing appeal before Commissioner (Appeals).

Analysis:
The appellant filed an appeal due to rejection by the Commissioner (Appeals) based on time-bar under the VCES Scheme. The appellant had opted for the VCES Scheme and filed the VCE - I Declaration on 29.10.2013. However, the original authority did not fully consider it, leading to the imposition of interest and penalty without providing immunity as per the scheme. Subsequently, a rectification application under section 74 of the Finance Act, 1994 was filed, which was rejected by the Assistant Commissioner on 31.3.2015, directing the appellant to appeal before the Commissioner (Appeals). The appellant received the Order-in-Original on 16.6.2014 and filed the appeal before the Commissioner (Appeals) on 25.6.2015. The Commissioner (Appeals) computed the limitation period from the date of the Order-in-Original, deeming the appeal time-barred. The Tribunal noted that the appeal was filed within the prescribed period after the rejection of the rectification application, thus not time-barred. Citing a similar case, the Tribunal held that the rejection on grounds of time-bar was unjustified, setting aside the impugned order and remanding the matter to the Commissioner (Appeals) for consideration on merits.

The appellant's counsel argued that the rectification application was filed within the two-year time limit prescribed under the Finance Act, 1994. The rejection of the rectification application on 31.3.2015 led to the filing of an appeal before the Commissioner (Appeals) on 25.6.2015, which, according to the appellant, was well within the time limit. The Tribunal concurred, emphasizing that the application for rectification of mistake was not considered, and the appeal was filed within the stipulated period after the rejection. Referring to a previous case, the Tribunal held that the appellant had the right to appeal after the rectification application was rejected. Consequently, the rejection of the appeal on grounds of time-bar was deemed unjustified, leading to the remand of the matter to the Commissioner (Appeals) for a merit-based consideration after providing the appellant with a personal hearing opportunity.