2019 (7) TMI 501 - AT - Service Tax

Time Limitation - Power of Commissioner (Appeals) to condone delay - Renting of immovable property service - Service tax not paid - no service tax registration has been obtained - HELD THAT - The Appeal has not been filed in compliance of Section 35 of Central Excise Act, 1944 which provides period of 60 days to the appellant for an Appeal to be filed against the decision or Order passed by the original Adjudicating Authority however, the Section provides discretion to the Commissioner to allow the Appeal to be presented within a further period of 30 days if he is satisfied that the appellant was prevented by sufficient cause from presenting the Appeal within the aforesaid period of 60 days. Apparently and admittedly the present Appeal is beyond the period of 90 days - reliance placed in the case of Singh Enterprises Vs. Commissioner Of C. Ex., Jamshedpur 2007 (12) TMI 11 - SUPREME COURT which impresses that Commissioner (Appeals) has no authority to condone the delay. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Delay in filing the appeal against the Order-in-Original dated 23.03.2017.
2. Condonation of delay application.
3. Compliance with Section 35 of the Central Excise Act, 1944 for filing an appeal.

Analysis:
1. The appellants were providing taxable service of renting immovable property without obtaining service tax registration or discharging any liability. A show cause notice was issued proposing recovery of service tax amounting to ?37,25,997 for the period from 01.04.2014 to March 2015, along with interest and penalties. The Order-in-Original confirming the proposal was dated 23.03.2017. An appeal against this order was dismissed on grounds of limitation, and a subsequent appeal was filed on 19.11.2018, leading to an application for condonation of delay due to the delayed communication of the Commissioner (Appeals) order to the appellant. The Tribunal held that the appeal was filed within the permissible time frame, disposing of the condonation application.

2. The appellant argued that the appeal was filed within the limitation period as the Order-in-Original was received on 06.12.2017, and the appeal was filed on 07.03.2017 before the Commissioner (Appeals). However, the Department contended that the appeal was not filed within the stipulated time frame. The Tribunal noted that the appeal was filed beyond the 60-day period provided by Section 35 of the Central Excise Act, 1944, and the Commissioner does not have the authority to condone such delays. Citing the case of Singh Enterprises Vs. Commissioner Of C. Ex., Jamshedpur 2008 (221) E.L.T. 163 (S.C.), the Tribunal dismissed the appeal, finding no infirmity in the Order-in-Original.

3. The Tribunal emphasized that the appellant's admission of receiving the Order-in-Original on the 91st day itself indicated non-compliance with the statutory period for filing an appeal. Section 35 of the Central Excise Act, 1944 allows a 60-day period for filing an appeal, with a discretionary additional 30-day period if sufficient cause is shown. As the present appeal was beyond the 90-day limit, the Tribunal upheld the decision that the appeal was time-barred and dismissed it accordingly.

This detailed analysis of the judgment provides a comprehensive understanding of the issues involved and the Tribunal's decision on each aspect of the case.