2022 (7) TMI 1243 - AT - Service Tax

Condonation of delay of 302 days in filing appeal - sufficient reasons for delay or not - section 35 of the Central Excise Act, 1944 - HELD THAT - Section 35 of the Central Excise Act (which also applies to Service tax matters by virtue of Section 83 of the Finance Act, 1994) provides the right of appeal. It is undisputed that it places a limitation on the extent to which the delay can be condoned by the Commissioner (Appeals). He cannot condone delay of more than one month. There is no provision in this Section for either Tribunal or any other authority to condone the delay in filing appeal before Commissioner (Appeals) in excess of one month. The limitation laid down in the law is sacrosanct and courts and more so Commissioner (Appeals) and Tribunal who are creatures of statute cannot go beyond it. Appeal dismissed.

Summary

Issues:
Appeal against time-barred order - Condonation of delay beyond one month - Applicability of Section 35 of the Central Excise Act, 1944 to service tax matters - Power of Commissioner (Appeals) to condone delay - Interpretation of legal provisions - Comparison with relevant case laws.

Analysis:
The appeal challenged the order by the Commissioner of Central Tax and Customs rejecting it as time-barred due to a delay of 302 days in filing the appeal. The appellant, a charitable and religious institution, cited the serious illness of their accountant as the reason for the delay. The key issue revolved around the power of the Commissioner (Appeals) to condone delays beyond one month as per Section 35 of the Central Excise Act, applicable to service tax matters.

The Commissioner (Appeals) clarified that under Section 35, an appeal must be filed within two months of the original order, with a provision to condone delays of up to one month on sufficient cause being shown. Citing the Supreme Court's decision in Singh Enterprises vs CCE Jamshedpur, it was established that the Commissioner (Appeals) cannot condone delays beyond one month, as there is no provision for such in the law.

The appellant's counsel argued for the condonation of the delay, citing cases where delays were condoned by higher courts. However, the Departmental representative supported the impugned order, emphasizing that the Tribunal cannot exceed the provisions of the Act. The presiding Member analyzed the legal provisions and highlighted that the Tribunal or any other authority cannot condone delays in excess of one month as per Section 35.

Referring to the Supreme Court's decision in Singh Enterprises, the presiding Member reiterated that the law does not allow for condonation beyond 30 days before the Commissioner (Appeals). The comparison with other cases highlighted the importance of statutory limitations and the inability of courts to override them. The judgment emphasized the sacrosanct nature of the limitation laid down by law and upheld the impugned order, rejecting the appeal.

In conclusion, the judgment underscored the legal provisions governing the condonation of delays in filing appeals before the Commissioner (Appeals) and emphasized the binding nature of statutory limitations. The decision highlighted the significance of adhering to the prescribed timelines and upheld the impugned order, rejecting the appeal due to the time-barred nature of the filing.