2020 (7) TMI 293 - AT - Service Tax

Condonation of delay in filing appeal - appeal filed after a period of 3 months and 10 days - power of Commissioner (Appeals) to condone delay - sufficient cause for delay present or not - HELD THAT - The appeal was filed on 02.12.2014 though it was to be filed on or before 22.08.2014 thereby causing a delay of 3 months and 10 days in filing the same before Commissioner (Appeals). We observe that the applicant had, therefore, filed an application praying for condonation of delay before Commissioner (Appeals) and order of Commissioner (Appeals) is in respect of the said application praying for condonation of delay. In view of Section 35 of Central Excise Act, delay was not condoned. As a result where of the appeal could not have sustained. The ground of death as taken is also not sufficient in explaining the impugned delay as admittedly the death of proprietor of appellant occurred during the pendency of proceedings before Commissioner (Appeals). There is no doubt about the fact that no demand can be confirmed and no recovery proceedings can be initiated against a dead person. In the present case, Commissioner (Appeals) has not passed any order of confirming any demand against the dead person. The Order was squarely on the ground of limitation. The same has been upheld by this Tribunal only because of the statutory mandate upon the Commissioner (Appeals) to not to condone the delay beyond three months - Application for COD dismissed.

Summary

Issues:
1. Rectification of mistake in final order dated 15.05.2018.
2. Power of Tribunal to condone delay in filing appeals.
3. Consideration of death of appellant during pendency of appeal.
4. Commissioner (Appeals) order based on limitation under Section 35 of Central Excise Act.
5. Upholding of Commissioner (Appeals) order by Tribunal based on Singh Enterprises case.

Analysis:
1. The judgment dealt with applications seeking rectification of a mistake in the final order dated 15.05.2018. The appeal before the Commissioner (Appeals) was dismissed due to being filed after the statutory period of 60 days, with a further delay of 30 days not being condoned. The Tribunal upheld this decision based on the limitation under Section 35 of the Central Excise Act, which does not allow for condonation of delay beyond three months.

2. The appellant argued that the Tribunal had the power to condone delays beyond three months if a sufficient cause was shown. However, the Tribunal maintained that the decision of the Commissioner (Appeals) was justified based on the statutory provisions. The judgment referred to the Singh Enterprises case, clarifying that sufficient cause for delay must be adequate and cannot be accepted without merit. The Tribunal found no infirmity in the Commissioner (Appeals) order, which was solely based on the ground of limitation.

3. The appellant raised the issue of the death of the proprietor during the appeal proceedings, citing precedents that no demand can be confirmed or recovery initiated against a deceased person. However, the Tribunal noted that the Commissioner (Appeals) did not pass any order confirming a demand against the deceased, and the decision was based on the limitation issue, not the death of the appellant.

4. The judgment emphasized that the order of the Commissioner (Appeals) was not based on the merits of the case but on the statutory limitation under the Central Excise Act. The Tribunal upheld this decision, stating that the Commissioner (Appeals) was bound by the statutory mandate not to condone the delay beyond three months, leading to the dismissal of the applications seeking rectification of the final order.

5. In conclusion, the Tribunal dismissed the applications, affirming the Commissioner (Appeals) order based on limitation and statutory provisions. The judgment highlighted the importance of adhering to the prescribed timelines for filing appeals and the limitations on condoning delays beyond the specified period.