2010 (6) TMI 308 - AT - Service Tax

Appeals rejected - refund of service tax used for manufacturing goods which were exported - on the ground that appellants have failed to file the appeals within a period of 60 days in the form EA1, which is applicable to Central Excise appeals - Held that - provisions of Section 85 of Finance Act, 1994, applicable - Commissioner has calculated 90 day, whereas Section 85 speaks of three months calculation itself is made in an incorrect manner - appeals are required to be remanded to the Commissioner (Appeals) to consider the matters afresh

Summary

Issues:
1. Failure to file appeals within the prescribed period of 60 days for refund of service tax used in manufacturing goods for export.
2. Interpretation of Section 85 of the Finance Act, 1994 regarding the applicability of the time limit for filing appeals in service tax matters.
3. Incorrect calculation of time limits by the Commissioner and rejection of appeals without proper verification.

Analysis:
1. The appeals were rejected due to the failure of the appellants to file within the 60-day period prescribed by law for claiming a refund of service tax used in manufacturing goods for export. The Member (T) found that the Original Adjudicating Authority and Commissioner (Appeals) did not verify the legal position properly. The argument presented by the learned DR regarding the applicability of Section 85 in the case of refund claims was not convincing. The Member (T) held that the matter related to service tax, and hence, the provisions of Section 85 of the Finance Act, 1994, should be applicable. It was also noted that the preamble of the order should have been correctly worded by the Original Adjudicating Authority to reflect the nature of the matter as related to service tax.

2. Another issue highlighted was the incorrect calculation of time limits by the Commissioner, who calculated 90 days instead of three months as stipulated in Section 85. The learned advocate argued that appeals were filed in time, and in cases where the due date fell on a Saturday, filing the appeal on Monday should be considered timely. The Commissioner (Appeals) was criticized for rejecting appeals without proper verification and not considering the general provision regarding appeals filed on the next working day after a holiday. The Member (T) emphasized the need for proper consideration of such factors and opportunities for appellants to present their case.

3. Consequently, the appeals were deemed to be remanded to the Commissioner (Appeals) for reconsideration. The Commissioner was instructed to treat the matters as related to Service Tax, provide proper opportunities for appellants to present their case, and decide on the issues after due consideration. The judgment highlighted the importance of correct legal interpretation, adherence to time limits, and providing fair opportunities for parties involved in legal proceedings.