2018 (5) TMI 924 - AT - Service Tax

Condonation of delay in filing appeal - rejection of VCES Declaration - time limitation - Held that - The proviso to sub section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 day - The Hon ble Apex Court in the case of Singh Enerprises 2007 (12) TMI 11 - SUPREME COURT OF INDIA , wherein the Court held that since Commissioner had no power of condonation beyond statutory prescribed period. Therefore, the Tribunal and the High Court even under Writ have no power to condone the said delay - appeal dismissed.

Summary

Issues:
- Appeal filed against order of Commissioner of Central Excise dismissing it as barred by limitation under Voluntary Compliance Encouragement Scheme (VCES) 2013.

Analysis:
The appeal was filed by M/s. International Travel House Ltd. against the order of the Commissioner of Central Excise dismissing it as barred by limitation under the Voluntary Compliance Encouragement Scheme (VCES) 2013. The appellant had declared tax dues amounting to ?1,71,523 for erroneous availment of Cenvat Credit on rent-a-cab service during 2011-12 & 2012-13 under VCES. Despite depositing the amount and informing the designated authority, a show cause notice was served proposing rejection of the declaration due to pending investigation against the appellant. The VCES declaration was rejected by the Assistant Commissioner, Service Tax, and the appeal to the Commissioner (Appeals) was dismissed on 16th October, 2017, without considering the merits but on grounds of being time-barred. The appellant contended that he had no knowledge of the pending enquiry at the time of declaration, and the delay in filing the appeal was due to the notice being served at the old address. The Department argued that the appeal was filed late and should be dismissed.

The Commissioner (Appeals) had dismissed the appeal based on limitation, citing the case of Singh Enterprises vs. CCE, Jamshedpur. The Tribunal observed that the appeal was filed with a delay of one month and 11 days, and Section 35 of the Central Excise Act was relevant, which allows a 30-day extension for sufficient cause beyond the initial 60-day period for filing an appeal. The proviso to sub-section (1) of Section 35 clarifies that the appellate authority cannot allow the appeal to be presented beyond the additional 30 days. Referring to the Singh Enterprises case, the Tribunal highlighted that the Commissioner has no power to condone delays beyond the statutory prescribed period, and neither the Tribunal nor the High Court can do so. Section 5 of the Indian Limitation Act does not apply in this context. Consequently, the Tribunal rejected the appeal, holding that it lacked merit due to being time-barred.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to dismiss the appeal as barred by limitation under the VCES 2013. The legal analysis focused on the provisions of Section 35 of the Central Excise Act, emphasizing the limitation period and the inability of the appellate authority to condone delays beyond the specified timeframe. The judgment underscored the importance of adhering to statutory timelines in filing appeals and the limited scope for condonation of delays in such cases.