2019 (2) TMI 1349 - AT - Service Tax

Time Limitation - Renting of immovable property service - Section 35 of Central Excise Act, 1944 - Held that - As per Section 35 of Central Excise Act, 1944, Appeal before Commissioner(Appeals) can be filed within 60 days of the receipt of the copy of order by the appellant. Statute itself vide provision to Section 35 empowers Commissioner(Appeals) to condone the delay beyond 60 days on being satisfied that the appellant was prevented by sufficient cause from presenting said appeal. But the extent of only 30 days of delay beyond said 60 days is statutorily provided to be condoned by the Commissioner(Appeals) - Since in the present matter the appeal before Commissioner(Appeals) was filed beyond 90 days that he was not empowered to condone the delay. The Commissioner Appeals was burdened with statutory mandate for not entertaining any Appeal which has been filed beyond a period of three months - appeal dismissed - decided against appellant.

Summary

Issues:
1. Whether the appeal filed by the appellant is barred by limitation.
2. Whether the Commissioner (Appeals) has the authority to condone the delay in filing the appeal beyond the prescribed period.

Analysis:
1. The appellant, engaged in providing services of renting immovable property and space for advertisement, was alleged by the Department to be liable for service tax. A show cause notice was issued proposing recovery of service tax, interest, and penalty. The original adjudicating authority confirmed the demand, leading to the appellant filing an appeal. The Commissioner (Appeals) dismissed the appeal on the grounds of being time-barred, as it was filed beyond three months of receiving the Order-in-Original.

2. The appellant's representative argued that they had not collected service tax for the services provided and should not be held liable. They contended that the imposition of penalty was unjustified and requested the order to be set aside. On the other hand, the Department's representative pointed out that the appellant did not contest the demand and had paid the confirmed amount. The appeal was challenged solely on the basis of limitation, with the Department asserting that there was no infirmity in the impugned order.

3. The Tribunal, after considering the arguments and examining the record, found in favor of the Department. It was observed that the Commissioner (Appeals) had correctly dismissed the appeal based on the limitation period. The statutory provision allowed for a 60-day window to file an appeal, with a provision for condoning a further 30-day delay for sufficient cause. However, in this case, the appeal was filed beyond 90 days, exceeding the Commissioner's authority to condone the delay. Citing a legal precedent, the Tribunal emphasized that the Commissioner (Appeals) was bound by the statutory mandate not to entertain appeals filed beyond three months. Consequently, the Tribunal upheld the order under challenge and dismissed the appeal.

This detailed analysis highlights the key legal issues and the Tribunal's decision based on the arguments presented by both parties and relevant legal provisions.