2018 (3) TMI 1058 - AT - Service Tax

Maintainability of appeal - delay in filing appeal - time limitation - Held that - It is apparent that there is no lapse on the part of the appellant. Nevertheless, the law prescribes that appeal should be filed within a period of two months from the date of receipt of the order that is impugned and that a delay of thirty days beyond that is condonable at the discretion of the appellate authority. As the appellant was led to believe that there was no delay, the scope for exercise of condonation did not exist. The appeal filed before the Commissioner (Appeals) stands restored - appeal allowed.

Summary

Issues:
1. Appeal filed against order-in-appeal being time-barred
2. Misinformation in the order-in-original regarding time-limit for filing appeal
3. Condonation of delay in filing the appeal

Analysis:
1. The appeal was filed by M/s CMI Industry Automation Pvt Ltd against an order-in-appeal which dismissed their appeal as time-barred under section 85 of the Finance Act, 1994. The appellant contended that the appeal was filed within the specified time-limit of three months as mentioned in the preamble to the order-in-original. However, the first appellate authority rejected the appeal stating that no application for condonation of delay had been filed.

2. The Tribunal observed that the preamble to the order-in-original erroneously indicated a time-limit of three months for filing the appeal. Since the appeal was filed well before the expiry of three months, there was no need for the appellant to apply for condonation of delay. The first appellate authority's failure to consider the entire order-in-original led to the rejection of the appeal. The Tribunal concluded that there was no lapse on the part of the appellant.

3. The law mandates that appeals should be filed within two months from the receipt of the impugned order, with a provision for condonation of a delay of thirty days at the discretion of the appellate authority. In this case, the appellant was misled by the misinformation in the order-in-original, leading them to believe there was no delay. The Tribunal set aside the impugned order, restored the appeal before the Commissioner (Appeals), and directed the appellant to file an application for condonation of delay. The first appellate authority was instructed to consider the misinformation provided in the order-in-original and dispose of the application and appeal in accordance with the law.