2018 (11) TMI 1291 - AT - Service Tax

Condonation of delay in filing appeal - power of Commissioner(Appeals) to condone delay - Non-payment of Service Tax - Works Contract Services - Held that - The Order-in-Original was passed on 30/11/2016 and allegedly received by the appellant on 06/02/2017 and appeal before the Commissioner(Appeals) was to be filed within two months i.e. before 05/04/2017 - But in the present case, it was filed after a delay of 12 days after the expiry of due date of two months. The Commissioner(Appeals) has dismissed the appeal without exercising his power of condonation of one month delay on sufficient grounds. Since there is a delay of 12 days from the date of receipt of the Order-in-Original and same was within the condonable limit, we condone the delay in filing the appeal before the Commissioner(Appeals) and remand the case back to the Commissioner(Appeals) for disposal on merits. Appeal allowed by way of remand.

Summary

Issues:
Delay in filing appeal before Commissioner(Appeals) due to failure to pre-deposit required amount under Section 35F of the Central Excise Act, 1944 read with Section 83 of the Act. Commissioner(Appeals) rejecting appeal on grounds of limitation. Condonation of delay sought by the appellant.

Analysis:

Issue 1: Delay in filing appeal due to failure to pre-deposit required amount
The appellant, engaged in executing work contracts, was alleged to have not paid service tax under 'Works Contract Services.' The Order-in-Original, confirming a demand of service tax, was passed on 30/11/2016 and communicated to the appellant on 06/02/2017. The appeal before the Commissioner(Appeals) was to be filed by 05/04/2017, but a delay of 12 days occurred due to the inability to pre-deposit the required amount. The appellant argued that the delay was within the condonable period of one month as provided under Section 85 of the Act. The Commissioner(Appeals) rejected the appeal on the ground of limitation.

Issue 2: Condonation of delay
The appellant contended that there was sufficient cause for condoning the 12-day delay, citing financial difficulties and the imminent closure of the business during the time of the Order-in-Original. The appellant emphasized that the Order was served through personal tender, making it challenging to produce proof of receipt on 06/02/2017. The appellant relied on case laws to support the argument for condonation of delay. The learned AR reiterated the findings of the impugned order.

Judgment and Decision
After hearing both parties and perusing the records, the Tribunal found that the delay of 12 days in filing the appeal was within the condonable limit. The Tribunal noted that the Commissioner(Appeals) dismissed the appeal without exercising the power of condonation of one month delay on sufficient grounds. Therefore, the Tribunal condoned the delay and remanded the case back to the Commissioner(Appeals) for disposal on merits. The appeal was allowed by way of remand. The operative portion of the Order was pronounced on 01/08/2018.