2019 (11) TMI 438 - AT - Service Tax

Condoantion of delay in filing appeal - power of Commissioner (Appeals) to condone delay - time limitation - HELD THAT - The appellant filed the appeal before the Commissioner after a delay of 30 days after the expiry of two months which is provided for filing the appeal as per Section 85 of the Finance Act, 1994. Further, the appellants also filed the application seeking condonation of delay of 30 days by giving sufficient reasons for not filing the appeal in time - The appellant has also filed affidavit of the Director along with the application. Commissioner (Appeals) was not satisfied with the reasons given for the delay and did not condone the delay of 30 days which was within his power to condone. The delay in filing the appeal before the Commissioner was not deliberate and intentional and the Commissioner should have condoned the delay and should have decided the appeal on merits - the delay of 30 days in filing the appeal before the Commissioner is condoned - matter remanded back to the Commissioner (Appeals) to decide the same on merits after following the principles of natural justice. Appeal allowed by way of remand.

Issues:
1. Appeal against rejection on limitation
2. Tax liability on software transactions
3. Delay in filing appeal before Commissioner

Analysis:
1. Appeal against rejection on limitation:
The appeal was directed against an order rejecting the appeal on limitation grounds. The Commissioner (Appeals) had deemed the appeal not maintainable due to a delay in filing. The Tribunal, after considering the consent of both parties, proceeded to decide the appeal directly due to the narrow compass of the issue. The appellant argued that the impugned order was not sustainable in law and that the appeal was filed within the prescribed period. The Commissioner (Appeals) had the power to condone a delay of up to 30 days if satisfied with the reasons provided. The appellant's delay was attributed to the closure of business operations and a delay in receiving the order due to winding-up procedures. The Tribunal, after hearing both parties, found that the delay was not intentional and deliberate, thus allowing the appeal by condoning the delay and remanding the matter back to the Commissioner (Appeals) for a decision on merits.

2. Tax liability on software transactions:
The case involved software developers trading in "Adobe Flash Lite" software, discharging VAT on sales under the Karnataka Value Added Tax, 2003. The Department contended that the transactions involved a 'right to use' the software, making them liable for Service Tax under specific sections of the Finance Act, 1994. A show-cause notice was issued, alleging non-payment of service tax, interest, and penalty. The original authority confirmed the demand, leading to an appeal before the Commissioner, which was rejected on limitation grounds. The Tribunal's decision to remand the matter back to the Commissioner (Appeals) for a decision on merits implies a reevaluation of the tax liability on the software transactions based on the principles of natural justice.

3. Delay in filing appeal before Commissioner:
The appellant had filed the appeal after a delay of 30 days beyond the prescribed period. The appellant sought condonation of the delay, providing reasons for the delay, including the closure of business operations and delayed receipt of the order. The Commissioner (Appeals) refused to condone the delay, leading to the appeal being rejected on time-bar. The Tribunal, after reviewing the submissions and material on record, found that the delay was not deliberate and intentional. Consequently, the Tribunal decided to condone the delay, remanding the matter back to the Commissioner (Appeals) for a decision on merits, emphasizing adherence to the principles of natural justice in the process.

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