2021 (9) TMI 755 - AT - Service Tax

Maintainability of appeal - order passed by the Additional Commissioner has been dismissed for the reason that it was filed beyond the period of limitation - power of Commissioner (Appeals) to condone the delay - section 85(3) of the Finance Act - HELD THAT - The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT examined the provisions of section 35 of the Central Excise Act, 1944, which are pari materia to the provisions of section 85 of the Finance Act, and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of the further period of 30 days. Reliance by the learned Authorized Representative appearing for the Department on the decision of the Supreme Court in Singh Enterprises is misplaced. It is no doubt true that the Supreme Court held that an appeal has to be filed within the period prescribed in the Act and the provisions of section 5 of the Limitation Act cannot be availed of, but the period of three months has to commence from the date a copy of the order is actually served upon the appellant and in the instant case the order was actually served upon the appellant only on July 05, 2011 - the appeal presented by the appellant on August 05, 2011 was within the initial period of three months prescribed in sub-section (3) of the section 85 of the Finance Act. The order dated November 26, 2015 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - Appeal allowed.

Summary

Issues:
1. Appeal filed beyond the period of limitation stipulated in section 85(3) of the Finance Act.
2. Determination of the date from which the period for filing an appeal should commence.
3. Interpretation of the provisions of section 85 of the Finance Act.
4. Application of the judgment in Singh Enterprises vs. CCE, Jamshedpur in condoning delays in filing appeals.

Analysis:
1. The appeal was filed to challenge the order passed by the Commissioner (Appeals) dismissing the appeal filed under section 85(1) of the Finance Act as it was filed beyond the limitation period specified in section 85(3) of the Act. The appellant contended that the appeal was filed within time from the date the order was received, not from the presumed date of service based on a letter from the Superintendent (Adjudication) to the Assistant Commissioner.

2. The key issue was to determine the actual date from which the period for filing the appeal should commence. The appellant argued that the appeal was filed promptly after receiving the order, while the Commissioner (Appeals) presumed the order was served in 2009 based on a communication, leading to the dismissal of the appeal. The date of actual service of the order was crucial in calculating the limitation period.

3. The interpretation of section 85 of the Finance Act was central to the case. Section 85(3) specifies the time limit for filing an appeal from the date of receipt of the decision or order. The appellant's right to appeal within the prescribed time frame was a statutory right, and the Commissioner (Appeals) erred in presuming the date of service without concrete evidence.

4. The judgment in Singh Enterprises vs. CCE, Jamshedpur was cited to support the Department's argument. However, the Supreme Court's ruling emphasized that the appeal period should commence from the actual date of service of the order. The Court highlighted the statutory provisions governing the condonation of delays and the limitations on extending the appeal filing period beyond the specified timeframe.

In conclusion, the Tribunal set aside the Commissioner (Appeals)'s order, allowing the appeal to be heard on its merits. The decision clarified that the appeal was filed within the initial three-month period as per section 85(3) of the Finance Act, emphasizing the importance of determining the actual date of service for calculating the limitation period.