2019 (5) TMI 265 - AT - Service Tax

Condonation of delay in filing appeal - power of Commissioner (A) to condone delay - HELD THAT - Admittedly in the present case there is a delay of 15 days beyond 90 days which is prescribed in Section 35 of the Central Excise Act for filing the appeal before Commissioner (A) - The Apex Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT OF INDIA where it was held that Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days period. Appeal dismissed - decided against appellant.

Summary

Issues:
- Appeal dismissal on time bar

Analysis:
The appeal in question was directed against an order passed by the Commissioner (A) dismissing the appellant's appeal on time bar grounds. The facts revealed that the appellants were involved in providing security and manpower supply services and were issued a show-cause notice for the period from June 2007 to September 2008, demanding a service tax amount along with interest. The Order-in-Original confirmed the demand, refraining from imposing penalties under Sections 77 and 78 of the Finance Act, 1994. Subsequently, the Department appealed, leading to the imposition of penalties by the adjudicating authority. The appellant, dissatisfied with this decision, filed another appeal before the Commissioner (A), who rejected it on time bar grounds.

During the proceedings, the appellant's representative argued that the impugned order was unsustainable as it failed to consider the circumstances adequately. It was highlighted that the delay in filing the appeal was due to the appellant's absence on a medical emergency, resulting in the delayed receipt of the Order-in-Original. The Commissioner (A) had considered the date of dispatch as the date of receipt, leading to a delay in filing the appeal. The appellant filed the appeal after 109 days, beyond the stipulated period of 60 days for filing an appeal as per Section 35 of the Central Excise Act, 1944. The Commissioner (A) had the authority to condone a delay of 30 days, but in this case, the delay exceeded this limit by 15 days, making it beyond the Commissioner's power to condone.

On the other hand, the learned AR defended the impugned order, asserting that the Commissioner (A) lacked the authority to condone delays beyond 30 days. The AR supported the order by citing various decisions. After considering both arguments and examining the legal provisions, the judicial member noted a delay of 15 days beyond the prescribed 90 days for filing an appeal before the Commissioner (A). Referring to a Supreme Court decision, it was emphasized that the appellate authority could only condone delays up to 30 days after the expiry of the initial 60-day period for filing an appeal. Therefore, the impugned order was upheld, and the appeal of the appellant was dismissed due to the time bar issue.

In conclusion, the judgment reinforced the statutory limitations on the appellate authority's power to condone delays in filing appeals, ultimately leading to the dismissal of the appellant's appeal on time bar grounds.