2023 (5) TMI 519 - AT - Service Tax

Condonation of delay in filing appeal - sufficient reason for delay provided or not - appeal dismissed for the reason that the appeal was filed not only beyond the statutory period of 3 months contemplated under section 85 (3) of Finance Act 1994 - appeal was filed beyond the further period of three months that was available to the appellant under the first proviso to sub-section (3) of section 85 of the Finance Act - power of Commissioner (Appeals) to condone the delay - HELD THAT - A perusal of sub-section (3) of Section 85, as it stood prior to 20.05.2012, clearly indicates that an appeal shall be presented within three months from the date of receipt of the order of the adjudicating authority in relation to service tax, interest or penalty. It further provides that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. The discretion of the Commissioner to condone the delay is therefore, circumscribed by the condition set out in proviso and the delay can be condoned only if the appeal is presented within a further period of three months after the expiry of the statutory period of three months, provided of course, he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of three months. The provision of section 35 of the Central Excise Act, 1944 relating to appeals before Commissioner (Appeals) had come up for consideration before the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT - The provisions of section 35 of the Central Excise Act, 1944 are pari materia with section 85(3A) of the Finance Act. The Supreme Court held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. In other words, 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. In the present case, the appeal was filed not only beyond the statutory limit of three months but even beyond the extended permissible period of three months. The Commissioner ( Appeals ) was therefore, justified in dismissing the appeal on the ground of limitation - appeal dismissed.

Summary

Issues involved: Appeal seeking setting aside of order dismissing the appeal for being filed beyond statutory period under Finance Act 1994.

Issue 1: Dismissal of appeal based on filing beyond statutory period
The appeal sought to set aside the order of the Commissioner (Appeals) dismissing it for being filed beyond the statutory period of three months as per the Finance Act 1994. The appellant failed to appear, and the authorized representative for the department made submissions. The main issue was whether the Commissioner (Appeals) was justified in dismissing the appeal for being filed beyond the statutory period and the further period that could be condoned if sufficient cause was shown. The relevant sections of the Finance Act were analyzed to determine the Commissioner's discretion to condone delays. The Supreme Court's interpretation of similar provisions in the Central Excise Act was considered, emphasizing the limited scope for condonation of delays. In this case, the appeal was filed beyond both the statutory limit and the extended permissible period, leading to its dismissal by the Commissioner (Appeals) on grounds of limitation. The Tribunal found no error in the Commissioner's decision and dismissed the appeal accordingly.