2023 (3) TMI 1274 - AT - Service Tax

Condonation of delay in filing appeal - time limitation - appeal dismissed for the reason that it had been filed beyond the period of limitation prescribed under section 85 of the Finance Act, 1994 - HELD THAT - On a plain reading of the provisions of section 85(3A) of the Finance Act, it is clear that any person aggrieved by any decision or order passed by the adjudicating authority may appeal to the Commissioner (Appeals) within two months from the date of receipt of the decisions or orders. The proviso, however, stipulates 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 two months, allow it to be presented within a further period of one month. It is, therefore, clear that an appeal can be filed within two months from the date of communication of the order but if the Appeal is filed after two months but within one month after the expiry of two months, the Commissioner (Appeals) may condone the delay in filing the Appeal if he is satisfied that the appellant was prevented by sufficient cause from preferring the appeal within two months. It, therefore, implies that if the Appeal is filed after one month after the expiry of the initial period of two months, the delay cannot be condoned. This issue was considered by the Supreme Court in Singh Enterprises 2007 (12) TMI 11 - SUPREME COURT , the Supreme Court examined the provisions of section 35 of the Central Excise Act, 1944, which is para materia to the provisions of section 85 of the Finance Act, and observed that 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 up to 30 days after expiry of 60 days which is normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and High Court were justified in holding that there was no power to condone the delay after expiry of 30 days period. As the appeal was preferred before the Commissioner (Appeals) even beyond the extended period of one month after the expiry of the statutory period of two months, it was liable to be dismissed and was rightly dismissed by the Commissioner (Appeals). It is, therefore, not possible to accept the contention of the appellant that the delay in filing the appeal should have been condoned by the Commissioner (Appeals) - there are no error in the order passed by Commissioner (Appeals) - appeal dismissed.

Summary

Issues:
1. Appeal filed beyond the period of limitation prescribed under section 85 of the Finance Act, 1994.
2. Whether delay in filing the appeal should be condoned.

Analysis:
1. The appeal was filed to challenge the order passed by the Commissioner (Appeals) on the grounds of being beyond the limitation period set by section 85 of the Finance Act, 1994. The appellant received the order on 21.08.2015 but filed the appeal only on 20.05.2016, which was clearly beyond the two-month period stipulated in the Act. The appellant claimed the delay was due to unavoidable circumstances and requested condonation.

2. The relevant provision of section 85(3A) of the Finance Act allows an appeal to be filed within two months from the date of receipt of the decision or order, with a provision for the Commissioner (Appeals) to condone the delay for a further period of one month if sufficient cause is shown. The Supreme Court's decision in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, clarified that the appellate authority can entertain the appeal by condoning the delay only up to 30 days after the expiry of the initial 60-day period for filing the appeal.

3. The Supreme Court's examination of section 35 of the Central Excise Act, 1944, which is similar to section 85 of the Finance Act, emphasized that the appellate authority has a statutory limit to condone delays. In this case, as the appeal was filed even beyond the extended period of one month after the initial two-month period, the Commissioner (Appeals) was justified in dismissing the appeal. The Court reiterated that sufficient cause must be shown for condonation of delays, and in this instance, the reasons provided did not justify the delay.

4. The judgment concluded that there was no error in the order passed by the Commissioner (Appeals) in dismissing the appeal due to the delay in filing. The appeal was accordingly dismissed, upholding the decision based on the statutory provisions and legal precedents cited in the case.

(Order pronounced in the open Court)