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2023 (8) TMI 1142 - AT - Service TaxMaintainability of appeal - appeal dismissed on the ground having been filed beyond the statutory time limit of 2 months specified under section 85 of the Finance Act, 1994 - condonation of delay application was not filed for condoning the delay in filing the appeal - whether an opportunity can now be provided to the appellant to move an application for condonation of delay or not? - HELD THAT - The Kerala High Court in THE FEDERAL BANK LTD. VERSUS THE ASSISTANT COMMISSIONER OF CENTRAL TAXES AND CENTRAL EXCISE, ERNAKULAM - I DIVISION, KOCHI, THE COMMISSIONER (APPEALS) , CENTRAL TAX, CENTRAL EXCISE AND CUSTOMS, KOCHI AND THE SUPERINTENDENT (APPEALS) , OFFICE OF THE COMMISSIONER (APPEALS) , CENTRAL TAX, CENTRAL EXCISE CUSTOMS, KOCHI 2019 (9) TMI 244 - KERALA HIGH COURT , in an identical matter, held that if there is delay, the office should have brought the fact to the notice of the petitioner and given an opportunity to explain the delay, more particularly if appeal was registered without noticing that there was any delay. In the facts and circumstances of the case, it is deemed appropriate to provide an opportunity to the appellant to move an application for condonation of delay. In case such an application is filed, an appropriate order shall be passed by the Commissioner (Appeals). Appeal allowed.
Issues involved:
The appeal dismissed for being filed beyond the statutory time limit under section 85 of the Finance Act, 1994 without a condonation of delay application. Summary: The Commissioner (Appeals) dismissed the appeal due to being filed after the specified two-month time limit without a condonation of delay application. The appellant received the order on 12.04.2016 but filed the appeal on 11.07.2016. The appellant believed they had 90 days to file the appeal based on a communication accompanying the order. The appellant's counsel argued that if informed of the delay, they would have applied for condonation. The department's representative contended that the appellant failed to appear before the Commissioner despite opportunities. The Tribunal noted the appeal was filed within the extended one-month period under section 85(3)(a) of the Finance Act but no condonation application was submitted. The issue was whether the appellant should be allowed to move an application for condonation of delay. Referring to a Kerala High Court case, the Tribunal decided to provide the appellant with an opportunity to file a condonation application. The Commissioner's order was set aside, granting the appellant one month to submit the application. If filed, the Commissioner would decide on the merits, allowing the appeal to the extent indicated.
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