2019 (12) TMI 119 - AT - Service Tax

Condonation of delay of one year in filing appeal - power of Commissioner (Appeals) to condone delay - Short payment of service tax - restaurant service - Department observed that despite providing the taxable service the appellant is not registered with the department nor is paying the service tax - period from May 2011 to September, 2015 - HELD THAT - As mentioned under Section 85(3A) of Finance Act, 1994, Commissioner (Appeals) has clearly recorded that he had the power to condone delay only coupled to the extent of 30 days beyond 60 days from the date of the order to be challenged and since the impugned appeal was much beyond 30 days/one month, it being filed after a delay of one year, the Commissioner (Appeals) had dismissed the appeal being barred by the period of limitation. The statute itself provide a specific period during for which the Commissioner (Appeals) can exercise the discretion to condone the delay that to on being satisfied that a sufficient cause has been show for not presenting the appeal in the appropriate time. From the order under challenge, it is apparent that there was no reason for delay was mentioned in the appeal. From the record of present appeal, there is apparent a letter written by the appellant to Commissioner (Appeals) on 30 May, 2018 praying for treating the said letter as a mercy petition - The only reason mentioned in the said application is that he demanded the copy of order dated 13.2.2017 from Assistant Commissioner, Ajmer vide his application dated 1.2.2018. From the Order-in-Original it is clear that the appellant was heard and the order is not ex-party. Accordingly, there is no reason apparent as to why the appellant took one year time to seek the copy of the order. Above all, Section 85(3A) of Finance Act makes it clear that Commissioner is not empowered to condone any delay in filing appeal in excess of limitation period prescribed under the said Section. There is no infirmity in the order under challenge. Commissioner (Appeals), rather in the given circumstances had no option to dismiss the appeal on the ground of limitation - the present appeal stands dismissed not only for want of the prosecution on part of the appellant but also for the reason that the appeal has no merits to sustain - Appeal dismissed.

Summary

Issues:
1. Delay in filing the appeal beyond the prescribed period of limitation.
2. Commissioner's power to condone delay in filing the appeal.
3. Sufficiency of reasons provided for the delay.
4. Appellant's conduct and interest in pursuing the appeal.

Analysis:
1. The appeal was dismissed by the Commissioner (Appeals) solely on the ground of limitation as it was filed after a delay of one year from the date of the original order. The appellant, a restaurant service provider, had short paid service tax amounting to ?8,30,232 during a specific period. The appellant failed to provide a satisfactory explanation for the delay in filing the appeal, leading to its dismissal.

2. Section 85(3A) of the Finance Act, 1994 provides a specific period within which the Commissioner (Appeals) can condone the delay in filing an appeal, subject to being satisfied with the reasons provided. In this case, the Commissioner had the authority to allow a further period of one month for filing the appeal beyond the initial two months if a sufficient cause was shown. However, the delay of one year in this instance was beyond the permissible limit for condonation.

3. The appellant's reasons for the delay were found to be insufficient. The appellant's claim of demanding a copy of the order dated 13.2.2017 from the Assistant Commissioner as the reason for delay was not considered satisfactory. The appellant's application lacked clarity on the source of knowledge about the original order and did not provide a valid explanation for the significant delay in seeking the copy.

4. The Tribunal emphasized that the Commissioner is not empowered to condone delays in filing appeals beyond the limitation period prescribed by law. Citing previous judgments, including Modern Syntex (I) Ltd. Vs. Commissioner of Central Excise, Jaipur, and Singh Enterprises Vs. CCE, the Tribunal highlighted the importance of providing valid and sufficient reasons for delay. The Tribunal concluded that the appeal was rightly dismissed due to the lack of prosecution by the appellant and the absence of merits to sustain the appeal.

In conclusion, the Tribunal upheld the dismissal of the appeal based on the grounds of limitation and lack of valid reasons for the delay. The judgment emphasized the importance of complying with statutory timelines and providing satisfactory explanations for delays in legal proceedings.