2019 (5) TMI 1235 - AT - Service Tax

Maintainability of appeal - the appeal had been filed beyond the period of two months from the date of receipt of the order - no application for condoning the delay in filing the appeal before the Commissioner is filed - Section 85(3A) of the Finance Act, 1994 - HELD THAT - The appellant claims to have received the order dated 30 April 2014 passed by the adjudicating authority on 12 June, 2015. The period of two months as contemplated under Section 85(3A) of the Act would expire on 11 August, 2014. The appeal was filed before the Commissioner (Appeals) on 3 September, 2014. The appellant claims that an application for condoning the delay in filing the appeal was filed before the Commissioner (Appeals) because the appellant was under a bona fide belief that the limitation for filing the appeal is three months. This according to the appellant, is because three months is provided in sub-section (3) of Section 85 of the Act. Under sub-section (3) of Section 85, the appeal can be filed before the Commissioner (Appeals) within three months from the date of order if the order of the adjudicating authority is before the date on which the Finance Bill, 2012 received the assent of the President. However, under sub-section (3A) of Section 85 of the Act, the appeal can be filed within two months from the date of the order of the adjudicating authority if the order is passed after the Finance Bill, 2012 received the assent of the President. It is also sought to be contended by the learned Counsel for the appellant that neither was any objection raised before the Commissioner (Appeals) nor was any objection taken by the office of the Commissioner (Appeals) regarding the appeal not having been filed within two months from the date of receipt of the order of the adjudicating authority. It is appropriate to remand the matter to the Commissioner (Appeals) with liberty to the appellant to move an application for condoning the delay since the appeal was filed within the extended period of one month for which the Commissioner (Appeals) could condone the delay - appeal allowed by way of remand.

Summary

Issues:
- Timeliness of filing the appeal before the Commissioner (Appeals)
- Applicability of Sections 85(3) and 85(3A) of the Finance Act, 1994
- Request for condonation of delay in filing the appeal
- Interpretation of the time limit for filing appeals under different sections of the Act
- Lack of objection raised by the Commissioner (Appeals) regarding the delay in filing the appeal

Analysis:

The judgment revolves around the timeliness of filing an appeal before the Commissioner (Appeals) in relation to the order dated 30 April, 2014 passed by the Deputy Commissioner. The appellant received the order on 12 June, 2014, and the appeal was filed on 3 September, 2014. The crux of the issue lies in the interpretation of Sections 85(3) and 85(3A) of the Finance Act, 1994. Section 85(3) provides for a three-month period for filing an appeal if the order predates the Finance Bill, 2012 receiving the President's assent, while Section 85(3A) mandates a two-month period if the order is post the Finance Bill, 2012 receiving assent.

The appellant contended that they believed the appeal period to be three months due to Section 85(3) and, therefore, did not file for condonation of delay. The lack of objection from the Commissioner (Appeals) regarding the delay further complicated the matter. The Tribunal acknowledged the confusion and remanded the case to the Commissioner (Appeals) for the appellant to apply for condonation of delay within one month, considering the appeal was filed within the extended one-month period. The Tribunal set aside the previous order and directed the Commissioner (Appeals) to review the application without bias.

In conclusion, the judgment emphasizes the importance of understanding the specific time limits for filing appeals under different sections of the Act and the necessity of seeking condonation of delay when required. It also highlights the significance of proper interpretation of statutory provisions to avoid confusion and ensure timely legal proceedings.