2009 (3) TMI 456 - AT - Service Tax

Condonation of delay-The appellant filed appeal before the Commissioner (Appeals) under the Finance Act, 1994 which provides limitation of 90 days to file appeal before the Commissioner (Appeals). He further submits that no defect notice was received for delay in filing the appeal. The appellant was under impression that appeal is within time. Held that- the appellants filed their appeal before the Commissioner (Appeals) under Form ST-4 under the Finance Act, 1994 which provides limitation of 90 days for filing appeal before the Commissioner (Appeals). Thus, it appears a bona fide mistake on the part of the appellants. Therefore, delay in filing the appeal before the Commissioner (Appeals) requires to be condoned.

Summary

Issues:
1. Timeliness of filing the appeal before the Commissioner (Appeals).

Analysis:
The appellants filed an appeal against the order of the Commissioner (Appeals) which was rejected as time-barred. The appellants received the adjudication order on 22-2-2008 and filed their appeal on 21-5-2008, resulting in a delay of 29 days. The Commissioner (Appeals) rejected the appeal due to the delay, citing the stipulated period under section 35 of the Central Excise Act, 1944. The appellants did not file any application for condonation of delay. However, the appellants argued that they filed the appeal under the Finance Act, 1994, which allows a limitation of 90 days for filing an appeal before the Commissioner (Appeals). They claimed that they did not receive any defect notice for the delay and were under the impression that the appeal was filed within the prescribed time. Upon review, it was found that the appellants indeed filed the appeal under the Finance Act, 1994, which provides a 90-day limit. The Tribunal considered this as a bona fide mistake on the part of the appellants and decided to condone the delay in filing the appeal before the Commissioner (Appeals).

The Tribunal, after considering the arguments and the circumstances, condoned the delay in filing the appeal before the Commissioner (Appeals). Since the Commissioner (Appeals) did not delve into the merits of the case due to the timeliness issue, the impugned order was set aside. The matter was remanded back to the Commissioner (Appeals) for a decision on merit. The appeal was allowed by way of remand, giving the appellants an opportunity to present their case before the Commissioner (Appeals) for a substantive review based on merit.