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2024 (2) TMI 258 - AT - Service TaxCondonation of delay in filing appeal before the Commissioner (Appeals) - appeal was filed on 02.07.2015 i.e. after the expiry of the limitation period prescribed under Section 85(3A) of the Finance Act, 1994 - sufficient reasons for delay present or not - HELD THAT - The decision of the Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT in unambiguous terms, has laid down that there was no power to condone the delay after the expiry of the extended period of 30 days. The Tribunal in the case of M/S DIAMOND CONSTRUCTION, M/S SAI SHREE CONSTRUCTION VERSUS COMMISSIONER OF CUSTOMS, CENTRAL EXCISE SERVICE TAX 2019 (2) TMI 1822 - CESTAT NEW DELHI also observed that the provisions of Section 35 of the Central Excise Act relating to filing of an appeal before the Commissioner (Appeals) are in pari materia to Section 85(3A) of the Finance Act and hence, the decision of the Apex Court in Singh Enterprises will squarely apply and as a result, the delay cannot be condoned by the Commissioner (Appeals) and there is no illegality in the impugned order. The impugned order deserves to be upheld. The contention raised by the appellant that they are not the proper authority for levying the service tax and to file the appeal challenging the impugned order needs to be rejected for the simple reason that in response to the show cause notice, the appellant had submitted the reply and in adjudication proceedings, it is the appellant, who had contested. Thereafter, an appeal was also filed by the appellant only, may be after some delay. Similarly, the appeal has been filed before this Tribunal but after delay of more than 4 years and 9 months though the limitation prescribed for filing an appeal before this Tribunal as per Section 86 is three months from the date of receipt of the order. Therefore, the ground taken by the appellant in approaching this Tribunal after such a long delay is not justified. It is also found that at the time when the impugned order was passed on 21.06.2018, the appellant was pursuing the appeal before this Tribunal against the order-in-appeal dated 09.04.2018 and also against order-in-appeal dated 12.12.2014 which resulted in the Final Order dated 30.09.2019 and Final Order dated 17.06.2021 respectively (as referred above). The appellant could have similarly approached this Tribunal within the prescribed period. Therefore, the plea taken by the learned Counsel for the appellant in the application for condonation of delay deserves to be rejected. The application for Condonation of Delay in filing the present appeal is dismissed for want of any sufficient cause - appeal dismissed.
Issues:
The judgment involves issues related to challenging an order on the ground of limitation, condonation of delay in filing an appeal, proper authority for levy of service tax, and application of relevant legal provisions. Challenging Order on Ground of Limitation: The appellant filed an appeal challenging the dismissal of their appeal due to exceeding the limitation period prescribed under Section 85(3A) of the Finance Act, 1994. The Commissioner observed that the appeal must be filed within two months from the date of communication of the order, with a provision for an additional one-month extension under certain circumstances. The Tribunal found no merit in the appellant's arguments and upheld the decision, citing the Supreme Court's ruling that there is no power to condone delay beyond the extended period of 30 days. Condonation of Delay in Filing Appeal: The application for condonation of delay in filing the appeal was listed before the Tribunal, filed beyond four years. The appellant argued that the Commandant was not the proper authority for the activities under the Home Guard Act, 1963, and therefore, the recovery should be made from the Government Department. However, the Tribunal rejected this argument, emphasizing that the delay cannot be condoned beyond the statutory period. Proper Authority for Levy of Service Tax: The appellant claimed that the Commandant was not the authorized person to act on behalf of the State Government, leading to improper service of the impugned order. The Tribunal dismissed this claim, stating that the appellant had contested the adjudication proceedings and filed the appeal themselves, making them responsible for timely action. The delay in approaching the Tribunal after more than four years was deemed unjustified. Application of Legal Provisions: The Tribunal referred to relevant legal provisions under Section 85(3A) of the Finance Act and compared them to Section 35 of the Central Excise Act. It highlighted the limitations on condoning delays beyond the specified periods and cited previous decisions to support the dismissal of the appeal due to exceeding the prescribed time frame. The Tribunal concluded that the application for condonation of delay lacked sufficient cause and dismissed the appeal accordingly. Separate Judgment: No separate judgment was delivered by the judges in this case.
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