2024 (5) TMI 937 - AT - Service Tax

Maintainability of appeal - time limitation - Appeal filed by the Appellant dismissed on the ground of delayed filing of the appeal - non-fulfillment of pre-deposit condition - HELD THAT - It is found from the records that the Appellant has enclosed Challan for Rs.10,93,583/- which was considered by this Bench on 04.03.2019. The Bench held that it was not in a position to make out as to whether this amount pertains to the present Appeal only or not. Taking into account that the Appeal was not decided on merits by the Commissioner(Appeals) and the same was dismissed both on account of non-fulfillment of pre-deposit condition as well as delay in filing of the appeal, the matter remanded to the Commissioner(Appeals) with the directions imposed - the Commissioner(Appeals) will give proper opportunity for personal hearing and follow principles of natural justice and decide the issue. Appeal allowed by way of remand.

Summary

Issues involved: Delayed filing of appeal and non-fulfillment of pre-deposit condition.

Delayed filing of appeal: The Appellant's appeal was dismissed by the Ld. Commissioner(Appeals) due to filing after the extended time limit, deemed barred by limitation u/s 85(3A) of the Act. The Commissioner relied on a Supreme Court decision regarding condonation of delay, emphasizing that the appellate authority can only condone delay up to 30 days beyond the normal 60-day appeal period. The Ld. Commissioner concluded that the appeal was not maintainable due to being time-barred.

Non-fulfillment of pre-deposit condition: The Ld. Commissioner also noted that the Appellant failed to make the required pre-deposit of 7.5% of the litigated amount. Despite mentioning in the ST-4 Form about filing an application under Section 35F of the Central Excise Act for dispensation of pre-deposit, no such application was found enclosed with the appeal memorandum. The Ld. Commissioner observed that no payment towards the liability was made during investigation or adjudication, and no pre-deposit was made at the time of filing the appeal.

The Appellate Tribunal, considering that the appeal was not decided on merits by the Commissioner(Appeals) due to non-fulfillment of pre-deposit and delay in filing, remanded the matter back to the Commissioner(Appeals). The directions given were for the Appellant to provide evidence regarding the date of communication of the Order-in-Original and details of the pre-deposit made towards the litigated amount. The Commissioner(Appeals) was instructed to allow a proper opportunity for a personal hearing, follow principles of natural justice, and decide the issue after receiving the specified details.