2023 (11) TMI 1075 - AT - Service Tax

Condonation of delay in filing appeal - appeal not presented within the period of two months nor within the extended period of one month -satisfactory reason for delay presented or not - 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. 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 one month after the expiry of the statutory period of two months. In the present case, admittedly, the order dated 29.12.2016 of the adjudicating authority was received by the appellant on 06.01.2017, but the appeal was presented before the Commissioner (Appeals) on 27.12.2017. It was clearly not presented within the period of two months nor within the extended period of one month. Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, may appeal to the Commissioner (Appeals) within sixty days from the date of the communication to him of such decision or order provided 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 sixty days, allow it to be presented within a further period of thirty days. 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 in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - 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. It is, therefore, not possible to accept the contention advanced by the learned counsel for the appellant that the Commissioner (Appeals) should have condoned the delay as satisfactory explanation had been offered. The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ground of limitation. Appeal dismissed.

Summary

Issues:
The appeal dismissal based on time limitation under section 85(3A) of the Finance Act, 1994.

Issue 1: Appeal Dismissal based on Time Limitation

The appellant filed an appeal before the Commissioner (Appeals) to challenge an order passed by the Additional Commissioner. The appeal was dismissed as it was filed after the extended period allowed under section 85(3A) of the Finance Act, 1994. The present appeal sought to challenge the subsequent order passed by the Commissioner (Appeals).

The appellant's counsel argued that there were valid reasons for the delay in filing the appeal, while the department's representative supported the dismissal. The Tribunal considered the submissions and examined the provisions of section 85(3A) of the Finance Act.

The section mandates that an appeal must be filed within two months from the date of receipt of the adjudicating authority's order, with a provision for a further one-month extension under certain circumstances. In this case, the appeal was filed after both the initial two-month period and the additional one-month period, leading to its dismissal by the Commissioner (Appeals).

The Tribunal referred to a previous decision by the Supreme Court regarding a similar provision in the Central Excise Act, highlighting that the authority can only condone delays up to a specific period beyond the normal filing duration. Therefore, the Tribunal concluded that the Commissioner (Appeals) was justified in dismissing the appeal due to the limitation issue.

Ultimately, the Tribunal upheld the dismissal of the appeal based on the time limitation, citing the clear provisions of section 85(3A) of the Finance Act, 1994.

(Order dictated in the open court)