2018 (11) TMI 178 - AT - Service Tax

Condonation of delay of 85 days in filing appeal - power of Commissioner (A) to condone delay - Held that - Since the delay in the present case was beyond the condonable limit, therefore, the Commissioner (A) has rightly dismissed the appeal as time bar by relying upon the decision of the apex court rendered in the case of Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT OF INDIA , where it was held that there was no power to condone the delay after the expiry of 30 days period - delay cannot be condoned - appeal dismissed - decided against appellant.

Summary

Issues:
1. Time bar for filing appeal before Commissioner (A) due to delay of 85 days.
2. Commissioner's power to condone delay beyond the prescribed period.
3. Applicability of Section 5 of the Indian Limitation Act, 1963.

Analysis:
1. The appeal was filed against an order rejecting it as time-barred due to a delay of 85 days in filing. The appellants, engaged in Erection, Commissioning, and Installation services, had not paid service tax on received amounts. The Commissioner (A) rejected the appeal citing it as beyond the condonable period of 30 days as per Section 85(3A) of the Finance Act, 1994, based on the decision in Singh Enterprises vs. CCE. The appellants argued the delay was due to circumstances beyond their control, but the AR defended the order, stating the Commissioner lacked power to condone delays beyond 30 days post the 60-day filing period.

2. The Tribunal considered the power of the Commissioner to condone delays beyond the prescribed period. Referring to Singh Enterprises case, it highlighted that the appellate authority can entertain an appeal within 60 days, with a further 30-day extension if sufficient cause is shown. However, the authority cannot allow the appeal beyond the total 90-day period. The Tribunal upheld the Commissioner's decision to dismiss the appeal as time-barred, as the delay exceeded the condonable limit, as clarified in the Singh Enterprises judgment.

3. The Tribunal clarified the applicability of Section 5 of the Indian Limitation Act, 1963, in the context of condonation of delays in filing appeals. It emphasized that the statutory provisions under the Finance Act, 1994, dictate the timeline for filing appeals and the authority's power to condone delays within the specified limits. The Tribunal affirmed that in cases like the present one, where the delay exceeds the condonable period, the Commissioner's decision to dismiss the appeal as time-barred aligns with the legal framework and precedents established by the apex court.

In conclusion, the Tribunal upheld the Commissioner's decision to dismiss the appeal as time-barred due to the delay of 85 days, which exceeded the condonable limit of 30 days post the 60-day filing period. The judgment underscored the statutory provisions governing the timeline for filing appeals and the authority's discretion in condoning delays within the specified limits, as elucidated in the Singh Enterprises case.