2024 (2) TMI 257 - AT - Service Tax

Condonation of delay of 29 days in filing appeal before the Commissioner (Appeals) - sufficient reasons not there to condone the delay - HELD THAT - The Order-in-Original in the present case was passed on 31st March, 2022 and the same is mentioned to have been received by the appellant on 15.04.2022. There is no dispute about the said date of receipt of order by the appellant. The appeal before Commissioner (Appeals) was admittedly filed on 15.07.2022. No doubt, in terms of section 85 of the Finance Act, the appeal was not filed within 60 days of the receipt of order. However, it has apparently been filed before expiry of 90 days from the said date. As per said section 85 itself, the Commissioner (Appeals) is competent to condone the delay within 30 days provided the delay has been sufficiently explained. It is observed that the application as has been considered by Commissioner (Appeals) apparently has no sufficient explanation for the impugned delay. However, it is also clear that the application does not pertain to the impugned issue/case. The reason given in the said application is about the order of cancellation of registration of the appellant. Whereas the Order-in-Original in the present case, which was appealed before Commissioner (Appeals) is about confirmation of demand of service tax alongwith the interest and the imposition of penalty of equal amount. This particular perusal is sufficient to hold that the question of insufficiency of explanation is absolutely irrelevant when it does not pertain to the issue involved. Hon ble Apex Court in the case of COLLECTOR, LAND ACQUISITION VERSUS MST. KATIJI AND OTHERS 1987 (2) TMI 61 - SUPREME COURT that ordinarily a litigant does not stand to benefit by lodging an appeal late, it is held that appellant herein, at-least be given an opportunity to put-forth the appropriate application. This is a fit case to be remanded back to Commissioner (Appeals) to look into the proper application of the appellant while exercising its power/discretion under section 85 of the Finance Act - appeal allowed by way of remand.

Summary

Issues involved:
The appeal was filed to challenge the rejection of the appeal by the Commissioner (Appeals) due to a delay of 29 days in filing the appeal.

Summary:
The appellant sought condonation of delay in filing the appeal before the Commissioner (Appeals) due to inadvertent filing of two applications. The first application considered by the Commissioner (Appeals) did not relate to the subject matter of the appeal, which concerned the confirmation of demand of service tax, interest, and penalty. The appellant requested a remand for reconsideration based on the grounds in the second application, emphasizing the need for a liberal approach in condoning delays. The Departmental Representative objected to the filing of two applications, arguing that the reason given in the first application was insufficient to explain the delay. However, the Tribunal observed that the second application, which highlighted financial constraints preventing timely appeal filing, was relevant to the case.

Upon reviewing the record, the Tribunal noted that the appeal was filed within 90 days of receiving the Order-in-Original, though not within the initial 60-day period as required by section 85 of the Finance Act. The Commissioner (Appeals) has the authority to condone delays within 30 days if sufficiently explained. The Tribunal found that the application considered by the Commissioner (Appeals) lacked a proper explanation for the delay and was unrelated to the subject matter of the appeal. In contrast, the second application, addressing financial difficulties, was deemed relevant to the case.

Citing the principle that a litigant does not benefit from late appeals, the Tribunal decided to remand the case back to the Commissioner (Appeals) to review the second application and exercise discretion under section 85 of the Finance Act independently. The Tribunal emphasized that its observations should not influence the Commissioner (Appeals)' decision, allowing for a fresh assessment of the sufficiency of the cause presented in the relevant application. Consequently, the appeal was allowed by way of remand for further consideration.