2021 (7) TMI 982 - AT - Service Tax

Condonation of delay in filing appeal before Commissioner (Appeals) - appeal was filed beyond the period prescribed under section 85 (3) of the Finance Act - Rejection of refund claim - HELD THAT - Initially the appellant was advised to file a representation before the Chief Commissioner against the order dated 26.10.2009, but subsequently, the counsel who was contacted, after the Range Officer informed the appellant that no appeal had been filed before the Commissioner (Appeals), advised that an appeal was required to be filed before the Commissioner (Appeals), that an appeal was filed on 13.05.2010. We are satisfied from the averments made in the delay condonation application that the appellant was prevented by sufficient cause from filing the appeal before the Commissioner (Appeals) within a period of three months from the date of receipt of the order. The delay, is, accordingly condoned and the appeal shall be treated to have been filed within time before the Commissioner (Appeals). The matter is remitted to the Commissioner (Appeals) to decide the appeal on merits as expeditiously as is possible since the Adjudicating Authority had passed the order in 2009 - Appeal allowed - decided in favor of appellant.

Summary

Issues:
1. Appeal against dismissal of refund claim under section 11B of the Central Excise Act, 1944 for delay in filing.
2. Application for condonation of delay in filing the appeal.
3. Evaluation of evidence regarding the date of receipt of the order.
4. Consideration of sufficient cause for condoning the delay in filing the appeal.

Analysis:
1. The appeal was filed to challenge the dismissal of a refund claim of ?11,42,999 under section 11B of the Central Excise Act, 1944, due to delay in filing. The Commissioner (Appeals) rejected the appeal as it was filed beyond the prescribed period under section 85(3) of the Finance Act.

2. The appellant sought condonation of the delay, stating that the order was received on 14.11.2009, and the appeal was filed on 13.05.2010, with a delay of 88 days. The appellant provided reasons for the delay, including misguidance and delay in preparing the appeal, which was accepted as sufficient cause for condonation.

3. The Commissioner (Appeals) rejected the appeal, assuming the order should have been received in early November 2009, without verifying with the post office. The Tribunal found this presumption unjustified and accepted the appellant's date of receipt as 14.11.2009, within the extended period for filing the appeal.

4. The Tribunal examined the delay condonation application and found that the appellant was prevented by sufficient cause from filing the appeal within the stipulated period. Consequently, the delay was condoned, and the matter was remitted to the Commissioner (Appeals) for a decision on the appeal's merits, emphasizing expeditious resolution due to the 2009 origin of the case. The appeal was allowed based on the above considerations.