2019 (9) TMI 244 - HC - Service Tax

Maintainability of appeal - appeal was filed belatedly without any condonation application - HELD THAT - Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation. It is to be noted that the appeal was not found defective as it was unaccompanied by any delay petition and the appeal was registered. If there was any delay involved, the Office ought to have brought it to the notice of the petitioner with regard to the delay involved, so as to give an opportunity to the petitioner to explain the delay - Once appeal was registered, without noting any delay and without notice to the appellant, the Appellate Authority could not have held that the appeal was not maintainable as it was barred by limitation. The delay involved even according to calculation of the Appellate Authority is around five days. The date on which the appeal is received in the Office will have to be calculated for reckoning the limitation. Since the appeal was received in the Office on 31.8.2018, that date has to be taken for reckoning the limitation. The date of registration of the appeal is purely an administrative matter within the office. That cannot be reckoned for the purpose of limitation. There is no delay in filing appeal - appeal restored.

Summary

Issues: Appeal under Section 85 of the Finance Act, 1994 - Delay in filing appeal - Maintainability of appeal - Condonation of delay

The judgment delivered by the High Court pertained to an appeal filed under Section 85 of the Finance Act, 1994, where the petitioner received the assessment order on 03.07.2017, and the deadline for submitting the appeal was 02.09.2017. The petitioner dispatched the appeal via courier on 30.08.2017, which was received by the Commissioner's Office on 31.08.2017. However, the appeal was registered only on 08.09.2017, without any application for condonation of delay being filed by the petitioner. Subsequently, the Commissioner of Appeal rejected the appeal citing it as time-barred, leading to the challenge of this decision through a writ petition.

The Court observed that the appeal was not considered defective, as it was registered and not accompanied by any delay petition. It was highlighted that if there was any delay, the Office should have notified the petitioner to explain the delay. Since the appeal was registered without any mention of delay and without providing notice to the appellant, the Appellate Authority erred in deeming the appeal as not maintainable due to being time-barred. The judgment emphasized the importance of giving the appellant an opportunity to address any delays before dismissing the appeal solely on the grounds of limitation.

Furthermore, the Court noted that the delay involved, even by the calculation of the Appellate Authority, was approximately five days. It was clarified that for calculating the limitation period, the date of receiving the appeal in the Office (31.08.2017) should be considered, not the administrative date of registration (08.09.2017). The judgment emphasized that the registration date is an administrative formality and should not be used to determine the limitation period for filing an appeal. Consequently, the Court concluded that there was no delay in filing the appeal and set aside the impugned order. The appeal was directed to be reinstated and heard on its merits, following the due process of law and after issuing notice to the petitioner.