2023 (3) TMI 891 - AT - Service Tax

Condonation of delay in filing appeal - appeal dismissed on the ground of limitation in terms of Section 85(3A) of the Finance Act, 1994 as the same has been filed beyond prescribed period - whether this Tribunal has power to condone the delay in filing Appeal before the 1st Appellate Authority beyond the period prescribed by Section 85(3A) of the Finance Act, 1994? - rejection of refund claim under Rule 5 of Cenvat Credit Rules, 2004 r/w Notification No. 27/2012-CE(NT) dated 18.6.2012. HELD THAT - The provision of Section 85(3A) of the Finance Act, 1994 prescribes that an appeal before the Commissioner can be presented within two months from the date of receipt of the Order of the adjudicating authority. The proviso thereto unequivocally lays down that in case of delay in presenting the appeal, the discretion of the Commissioner (Appeals) in considering application for condonation of delay is restricted to one month only. If the Commissioner (Appeals) is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, he has the jurisdiction to allow it to be presented within a further period of one month. Thus, the total period, including the extended period to prefer an appeal under Section 85 of the Act, 1994, is three months. The provision of Section 35 of the Central Excise Act, 1944 which is parimateria with Section 85(3A) of the Finance Act, relating to appeals before Commissioner (Appeals) had come up for consideration before the Hon ble Supreme Court in the matter of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . The said Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order provided that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of sixty days, allow it to be presented within a further period of thirty days. 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. The Commissioner (Appeals) herein was, therefore, justified in dismissing the appeal on the ground of limitation. In view of the aforesaid decision of the Hon ble Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT it is clear that the Commissioner has no power to condone the delay beyond the period prescribed by the statute and the appeal has been rightly dismissed by the learned Commissioner on the ground of limitation. In the matter of M/S. ALBERT COMPANY PVT. LTD. VERSUS THE COMMISSIONER OF SERVICE TAX 2014 (3) TMI 655 - MADRAS HIGH COURT , as placed on record on behalf of Revenue, it has been specifically held by the Hon ble High Court, while interpreting Section 85(3) ibid, that the Tribunal has no power or authority to extend the period of limitation prescribed by the statute for entertaining the appeal. Thus, it is well settled that once the period of limitation expired as prescribed u/s. 85(3) ibid neither the Tribunal nor the first appellate authority has power to condone the delay in filing the appeal beyond the statutory period. Therefore the order of the Commissioner (Appeals) dated 26.11.2019 rejecting the appeal on the ground that the appeal has been filed belatedly beyond the period stipulated under Section 85 of the Act does not warrant any interference and the same is accordingly dismissed.

Summary

Issues Involved:
1. Justification of the 1st Appellate Authority in dismissing the appeal on the ground of limitation.
2. Tribunal's power to condone the delay in filing an appeal beyond the period prescribed by Section 85(3A) of the Finance Act, 1994.

Summary:

Issue 1: Justification of Dismissal on Ground of Limitation
The appeal challenged the order by the Commissioner (Appeals)-II, Central Tax, CGST, Mumbai, which dismissed the appellant's appeal due to being filed beyond the prescribed period under Section 85(3A) of the Finance Act, 1994. The appellant's appeal was filed 58 days after the statutory time limit of two months, resulting in dismissal on the ground of limitation. The appellant argued that the delay was due to the sudden resignation of a key employee and subsequent difficulties in managing pending tasks. The appellant contended that the delay was neither intentional nor deliberate and should have been condoned.

Issue 2: Tribunal's Power to Condon the Delay
The Tribunal examined whether it had the power to condone the delay beyond the period prescribed by Section 85(3A). Section 85(3A) stipulates that an appeal must be presented within two months from the date of receipt of the adjudicating authority's order, with a further period of one month allowed for condonation if sufficient cause is shown. The Tribunal referred to the Hon'ble Supreme Court's decision in Singh Enterprises vs. CCE, which clarified that the appellate authority has no power to condone the delay beyond the extended period of thirty days after the normal period of sixty days. The Tribunal also cited Chhattisgarh State Electricity Board v. Central Electricity Regulatory Commission, which ruled out the application of Section 5 of the Limitation Act where the Legislature has prescribed a stipulated outer limit for condonation.

The Tribunal emphasized that it must operate within the confines of the statute and cannot extend the period of limitation beyond what is prescribed. It noted that decisions cited by the appellant, such as Yapp India Automotive Systems Pvt. Ltd. vs. CCE & ST, were contrary to the Supreme Court's ruling in Singh Enterprises. The Tribunal also mentioned that the High Court's writ jurisdiction under Article 226 of the Constitution of India, as seen in cases like Panoli Intermediate (India) P. Ltd. vs. UOI, does not apply to the Tribunal.

Conclusion:
The Tribunal concluded that neither it nor the first appellate authority has the power to condone delays beyond the statutory period prescribed under Section 85(3A). Consequently, the Commissioner (Appeals) was justified in dismissing the appeal on the ground of limitation, and the Tribunal dismissed the appeal accordingly.