2023 (4) TMI 10 - AT - Service Tax

Condonation of delay in filing appeal - power of Commissioner (Appeals) to condone delay - appellant received the order dated 31.07.2012 passed by the Joint Commissioner on 06.09.2012, but the appeal was filed before the Commissioner (Appeals) only on 20.06.2014 - HELD THAT - It is clear from the provisions of section 85(3A) of the Finance Act, 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 not possible to accept the contention of the learned counsel for the appellant that the delay in filing the appeal should have been condoned by the Commissioner (Appeals) nor is it possible to examine the contention on merit as to whether the service tax demand could have been confirmed or not. There is, therefore, no error in the order passed by Commissioner (Appeals) - appeal dismissed.

Summary

Issues:
1. Timeliness of filing an appeal under section 85 of the Finance Act, 1994.

Detailed Analysis:
The appeal in question was filed by the Superintendent of Police, Chhatarpur to challenge the order passed by the Commissioner (Appeals) due to being filed beyond the limitation period set by section 85 of the Finance Act. The relevant provision, section 85(3A), mandates that an appeal must be presented within two months from the date of receipt of the decision or order of the adjudicating authority. However, the proviso allows the Commissioner (Appeals) to condone the delay for a further period of one month if sufficient cause is shown. In this case, the appellant received the order on 31.07.2012 but filed the appeal on 20.06.2014, well beyond the prescribed time limit.

The appellant's counsel argued that the delay was due to unavoidable circumstances and should have been condoned. On the other hand, the Department's authorized representative supported the impugned order, citing a decision by the Supreme Court in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur. The Tribunal considered both arguments and analyzed the provisions of section 85(3A) in detail.

The Tribunal examined the Supreme Court's decision in Singh Enterprises, which dealt with a similar provision under the Central Excise Act, 1944. The Court clarified that the appellate authority can only condone the delay up to 30 days after the expiry of the normal 60-day period for filing an appeal. The Court emphasized that there is no power to condone the delay beyond this specified period. The concept of "sufficient cause" for condonation of delay was also discussed, highlighting that it must be adequate and cannot have a standard formula for acceptance or rejection.

Given the specific language and intent of the statute, the Tribunal concluded that the appeal in question was filed well beyond the extended period allowed for condonation. Therefore, the delay could not be condoned, and the appeal was rightly dismissed by the Commissioner (Appeals). The Tribunal found no error in the Commissioner's order and accordingly dismissed the appeal, upholding the timeliness requirements set forth in the Finance Act.