2023 (9) TMI 18 - AT - Service Tax

Condonation of delay in filing appeal before the commissioner (appeals) - appeal dismissed for the reason that it was filed beyond the time prescribed under section 85(3) of the Finance Act, 1994 - HELD THAT - A perusal of sub-section (3A) of Section 85 clearly indicates that an appeal shall be presented within two 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 two months, allow it to be presented within a further period of one month. In the present case, admittedly, the order dated 30.01.2017 of the adjudicating authority was received by the appellant on 06.02.2017, but the appeal was presented before the Commissioner on 27.07.2017. It was clearly not presented within the period of two months nor within the extended period of one month. The Commissioner (Appeals) dismissed the appeal after placing reliance on the decision of Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT . 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 Central Excise 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. There are no illegality in dismissing the appeal. The present appeal is, accordingly, dismissed.

Summary

Issues:
The appeal against the order dismissing the appeal due to delay in filing under section 85(3) of the Finance Act, 1994.

Summary:

Issue 1: Delay in filing the appeal

The appellant received the order on 06.02.2017 but filed the appeal on 27.07.2017, beyond the prescribed period of two months under section 85(3A) of the Finance Act. The Commissioner (Appeals) dismissed the appeal as it was not filed within the extended period of one month after the statutory two-month period. The appellant argued that there was sufficient cause for the delay, while the department cited the Supreme Court decision in Singh Enterprises case to support the strict interpretation of the time limit.

Issue 2: Legal provisions and interpretation

Section 85(3A) of the Finance Act mandates that appeals must be filed within two months of receiving the adjudicating authority's decision, with a provision for a further one-month extension if sufficient cause is shown. The Commissioner's discretion to condone the delay is limited by this provision, allowing for an extension only if the appeal is filed within one month after the initial two-month period. The Commissioner (Appeals) relied on the Singh Enterprises case, which dealt with similar provisions under the Central Excise Act, where the Supreme Court held that the appellate authority can only entertain appeals by condoning delays up to 30 days beyond the normal filing period.

Conclusion

The Commissioner (Appeals) did not err in dismissing the appeal, as it was not filed within the prescribed time limits set out in section 85(3A) of the Finance Act. The decision was in line with the legal interpretation provided by the Supreme Court in the Singh Enterprises case. Therefore, the appeal was dismissed accordingly.

Separate Judgement:
None.