2024 (2) TMI 305 - AT - Service Tax

Condonation of delay in filing appeal - competence of Commissioner (Appeals) to condone the delay in filing the appeal beyond four months (3 1 months) - HELD THAT - The review order if is required to be passed in terms of Section 84 the appeal before Commissioner (Appeals) has to be filed within three months from the date of receipt of the order or order of such adjudicating authority which is prayed to be set aside and appeal, if directed under said order has to be filed within one month of the communication of the said order. There is nothing mentioned is Section 84 about power of condonations with Commissioner (Appeals). It is proviso to Section 85 which empowers the Commissioner (Appeals) to condone a period of 30 days (one month) after the expiry of 90 days (3 months). The proviso makes it clear that the Commissioner has no competence to condone the delay beyond 30 days over 90 days. The Hon ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT held Plea that , because of lack of experience in business there was delay, is not a adequate reason. Thus, the Commissioner (Appeals) was not competent to condone the delay beyond 30 days over 90 days. In the present case the order-in-original is dated 14.02.2014. Review order is dated 20.05.2014. Thus the review order is not within 3 months as is required under Section 84 of the Act. The said order admittedly was received at Divisional office, Gwalior on 21.05.2014 but the appeal admittedly was filed on 07.07.2014 i.e. much beyond 30 days of receipt of review order and beyond 90 30 days of the order in original. It is already observed above that Commissioner (Appeals) has no statutory power to condone delay in filing appeal before him which is beyond 90 30 days of the communication of order in original. Appeal allowed.

Summary

Issues Involved:
The issues involved in the judgment are the liability of the appellant for taxable service under the category of renting of immovable property services, the competence of the Commissioner (Appeals) to condone the delay in filing the appeal, and the confirmation of demand for the normal and extended period.

Liability for Taxable Service:
The appellant was found to provide taxable service under renting of immovable property services but failed to discharge their liability. Two show cause notices were issued proposing demands of service tax for different periods. The demand from one notice was dropped as it was barred by time, while the demand from the other notice was confirmed along with interest and penalty. The appellant acknowledged their liability for the normal period but objected to the demand for the extended period. The Commissioner (Appeals) confirmed the demand for both periods, stating that there was suppression on the part of the appellant regarding their tax liability.

Competence of Commissioner (Appeals):
The primary ground to challenge the order was the competence of the Commissioner (Appeals) to condone the delay in filing the appeal. The relevant provisions of Section 84 and 85 of the Finance Act, 1994 were examined. It was observed that the Commissioner (Appeals) had no statutory power to condone the delay beyond 30 days over 90 days. In this case, the appeal was filed much beyond the permissible period, making the order under challenge without competence. As a result, the order was set aside, but the demand for the normal period was still confirmed.

Confirmation of Demand:
The appellant's liability for renting of immovable property services was acknowledged for the normal period. The original authority confirmed the demand for this period, and the Commissioner (Appeals) upheld this decision. However, the demand for the extended period was also confirmed by the Commissioner (Appeals), leading to the appeal challenging this decision. Despite the setting aside of the order due to the Commissioner (Appeals) lacking competence to condone the delay, the demand for the normal period remained confirmed.