2019 (11) TMI 1270 - HC - Service Tax

Condonation of delay in filing appeal before commissioner (appeals) - appeal dismissed for inordinate delay - Section 35G of the Central Excise Act, 1944 - it is the case of appellant that the original order passed by the adjudicating authority was never served to the appellant till 07.02.2012 and immediately on receipt of the same, Annexure A/6 appeal was preferred before the Commissioner (Appeals) on 12.03.2012 with an application for condoning the delay. HELD THAT - With regard to service of the order, first of all, it is to be noted that the original order was sent by registered post on 04.04.2007. A copy of the order was requested for by the appellant way back in the year '2008' and the same was served to them, on more than one occasion, as conceded by them in Annexure A/4 and A/5. Despite this, the appeal was admittedly preferred only in the year '2012' with a petition for condoning the delay as shown in Annexure A/6, which we have already extracted above. The acceptability of the explanation was considered by the Commissioner (Appeals), who held it against the appellant, which came to be affirmed by the Tribunal as well. We are aware of the ruling rendered by the Apex Court as per decision in N Balakrishnan Vs M Krishnamurthy 1998 (9) TMI 602 - SUPREME COURT to the effect that 'extent' of delay is not the matter which weighs much, but the 'explanation'. The explanation offered by the appellant as per Annexure A/6 is virtually regarding shifting of the office or transfer of some of the employees, which cannot be considered as proper explanation, much less any satisfactory explanation. The learned counsel representing the respondent submits that the mandate of Section 85 of the Finance Act, 1994 is very clear and that the appeal had to be preferred within three months. It is also stated that the statute stipulates the maximum time limit which could be condoned by the authority concerned. The said power cannot be extended any further, which otherwise would amount to re-writing the statute. Appeal dismissed.

Summary

Issues:
Challenge to CESTAT order dismissing appeal for delay under Section 35G of Central Excise Act, 1944.

Analysis:
1. The appellant, a Public Sector Company, availed Cenvat Credit facility under Cenvat Credit Rules, 2004. A show-cause notice was issued questioning the credit availed. The original order was passed on 30.03.2007, but the appellant claimed they received it only in 2012.

2. The appellant filed an appeal before the Commissioner (Appeals) on 12.03.2012, seeking condonation of the delay of 'four years and eleven months,' which was rejected. The Tribunal upheld the dismissal based on delay without delving into the merits of the case.

3. The department argued that the appellant had received the order on multiple occasions, as evidenced by their own submissions. The appellant's explanation for the delay was related to office shifting and employee transfers, deemed unsatisfactory by the authorities.

4. The Tribunal referred to Section 85 of the Finance Act, 1994, and the Supreme Court's decision in Singh Enterprises case, upholding the dismissal of the appeal due to delay. The Court noted that the explanation provided by the appellant did not suffice to condone the delay.

5. The Court cited legal precedents emphasizing the importance of a satisfactory explanation for delay in filing appeals. The appellant's reasons were found inadequate, leading to the dismissal of the appeal by the Commissioner (Appeals) and subsequently by the Tribunal.

6. The respondent argued that the time limit for filing appeals under Section 85 of the Finance Act, 1994, was clear and could not be extended beyond the statutory limit. Referring to a previous judgment, the Court reiterated the importance of adhering to statutory timelines.

7. Considering the legal position and precedents, the Court found no grounds to interfere with the Tribunal's decision. The appeal was ultimately dismissed, upholding the dismissal of the appellant's appeal due to the delay in filing and unsatisfactory explanation provided.

This detailed analysis covers the issues raised in the judgment, the arguments presented by both parties, the legal principles applied, and the final decision of the Court.