2021 (8) TMI 1118 - AT - Service Tax

Maintainability of appeal - appeal dismissed for the reason that it was filed beyond the statutory period contemplated - section 85(3A) of the Finance Act, 1994 - HELD THAT - In the present case, admittedly the order of the adjudicating authority was received by the appellant on March 15, 2015 but the appeal was presented before the Commissioner (Appeals) on July 02, 2015. It was clearly not presented within the period of two months nor within the extended period of one month. The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . The provisions of section 35 of the Central Excise Act, 1944 are pari materia with section 85(3A) of the Finance Act. The Supreme Court in Singh Enterprises, held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of section 35 of the Central Excise Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days. Appeal dismissed.

Summary

Issues: Appeal against dismissal of appeal due to delay in filing within statutory period under section 85(3A) of the Finance Act, 1994.

In this case, the appellant sought to challenge the order dismissing their appeal filed beyond the statutory period specified under section 85(3A) of the Finance Act, 1994. Despite multiple opportunities, the appellant failed to appear to press the appeal, leading to the matter being decided on its merits. The appellant received the order from the Assistant Commissioner on March 15, 2015, but filed the appeal before the Commissioner (Appeals) on July 2, 2015, exceeding the prescribed two-month period for filing. The Commissioner (Appeals) relied on the decision in Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur [2008 (221) ELT 163 (SC)], which interpreted the provisions of section 35 of the Central Excise Act, 1944, similar to section 85(3A) of the Finance Act. The Supreme Court in Singh Enterprises clarified that the authority can only condone a delay of up to 30 days beyond the normal period for appeal filing, which is 60 days. Consequently, the Commissioner (Appeals) did not act unlawfully in dismissing the appeal, leading to the present appeal being dismissed as well.