2019 (6) TMI 380 - AT - Service Tax

Maintainability of appeal - condonation of delay - appeal was dismissed on the ground of limitation as also on the ground of non observance of the provisions of Section 35F - HELD THAT - The date of 26.02.2016, as disclosed by the appellants themselves is the date when they retrieved the copy of the order from the drawer of the expired worker. This fact itself leads to inevitable conclusion that the order was received by the assessee prior to the said date and was kept in the drawer and was taken out only on 26.02.2016. In such a scenario, the date of recovery of the order from the drawer of the employee, who had since expired, cannot be treated as date of receipt of the order. Admittedly, the order was received by them much prior to the said date, inasmuch as there is no evidence on record to reflect that the order dispatched on 30.09.2013 was received back by the Revenue as undelivered. As such, we agree with the learned Commissioner (Appeals) that the appeal filed on 30.03.2016 against an order on 30.09.2013 is hopelessly barred by limitation. The legal issue as to whether the Commissioner (Appeals) can condone the delay beyond the period prescribed in the Act stands decided against the assessee in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Rejection of appeal on the grounds of limitation and nonobservance of Section 35F.

Analysis:
1. The Appellate Tribunal noted that the Commissioner (Appeals) rejected the appellant's appeal based on limitation and nonobservance of Section 35F. The order in question was dispatched on 25.09.2012, and the appeal was filed on 30.03.2016 with a condonation of delay application.

2. The Commissioner (Appeals) observed discrepancies in the dates mentioned by the appellant regarding the receipt of the order. The appellant claimed to have retrieved the order on 26.02.2016, while the appeal mentioned different dates due to a typographical error. The Tribunal found that the order was received before 26.02.2016, as evidenced by the retrieval date, making the appeal filed on 30.03.2016 time-barred.

3. The Tribunal highlighted that the date of retrieving the order from the drawer cannot be considered the date of receipt, especially when there was no evidence of the order being undelivered. The Tribunal agreed with the Commissioner (Appeals) that the appeal filed beyond the limitation period was not valid.

4. Additionally, the Tribunal referred to a legal precedent where it was established that delays beyond the prescribed period cannot be condoned. Citing the case of M/s Singh Enterprises v/s Commissioner of Central Excise, the Tribunal found no grounds to overturn the Commissioner's decision. Consequently, the appeal was rejected based on the issues of limitation and nonobservance of legal provisions.

This detailed analysis of the judgment addresses the issues of limitation and nonobservance of Section 35F comprehensively, outlining the Tribunal's reasoning and the legal principles applied in reaching the decision.