2024 (3) TMI 796 - AT - Service Tax

Maintainability of appeal - Time limitation - appeal dismissed for the reason that though the appeal was filed after the expiry of two months from the date of receipt of the order, the appellant did not file any delay condonation application to explain the delay in filing the appeal - HELD THAT - Section 85 (3A) of the Finance Act provides that an appeal shall be presented before the Commissioner (Appeals) within two months from the date of receipt of the decision or order of the adjudicating authority, but 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 two months, allow it to be presented within a further period of one month. In the present case, it is not in dispute that the appeal was filed before the Commissioner (Appeals) after the expiry of two months but before the expiry of the further period of one month. It is correct that the appeal has to be filed within two months from the date of receipt of the order, but the Commissioner (Appeals) does have the power to condone the delay of a period of further month provided he is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the stipulated time - In the facts and circumstances of the case, when the covering letter that was sent to the appellant enclosing the order passed by the Assistant Commissioner mentions that the appeal could be filed within three months, it is clearly a case where the delay, even if an application had not been filed, should have been condoned. In such circumstances, it is not possible to sustain the view taken by the Commissioner (Appeals) that in the absence of a delay condonation application, the appeal was liable to be dismissed - the matter is remitted to the Commissioner (Appeals) to decide the appeal on merits. Appeal allowed.

Summary

Issues:
The main issue in this case is the quashing of the order dated 16.04.2018 passed by the Commissioner (Appeals) due to the appellant's failure to file a delay condonation application for filing the appeal after the expiry of two months from the date of receipt of the order.

Summary:
The appellant sought the quashing of the order dated 16.04.2018 passed by the Commissioner (Appeals) as the appeal was filed after the expiry of two months from the date of receipt of the order without a delay condonation application. The appellant argued that a covering letter from the Department mentioned the appeal could be filed within three months, leading to a bona fide belief that there was no delay in filing the appeal.

The Finance Act stipulates that an appeal must be presented within two months, with a provision for the Commissioner (Appeals) to allow a further period of one month if there is sufficient cause for the delay. The appellant in this case filed the appeal after two months but before the expiry of the additional one month.

The authorized representative for the department contended that the appellant should have explained the delay in filing the appeal by submitting a delay condonation application, as mandated by the statute. However, considering the circumstances where the covering letter indicated a three-month filing period, the delay should have been condoned even without a formal application.

The Tribunal held that the Commissioner (Appeals) has the authority to condone a delay of one month if satisfied with the reasons provided by the appellant. Therefore, the order of the Commissioner (Appeals) dismissing the appeal for lack of a delay condonation application was set aside. The matter was remitted back to the Commissioner (Appeals) to decide the appeal on its merits, and the appeal was allowed accordingly.