2013 (3) TMI 443 - AT - Service Tax

Condonation of delay in filing an appeal - Section 85 of Finance Act, 1994. - None present for the appellant, nor there is any adjournment application. - Commissioner (Appeals) has vested discretionary power to condone delay beyond first 3 months if appeal is within next 3 months. Held that - Matter is remanded to the Commissioner (Appeals) if any, to exercise his discretionary power, upon application if any, made by appellant explaining delay. If such an application is made, learned authority shall pass appropriate order granting fair opportunity to the appellant.

Summary

Issues:
1. Dismissal of appeal on limitation grounds.

Analysis:
The judgment by the Appellate Tribunal CESTAT, NEW DELHI, dealt with the dismissal of an appeal on the grounds of limitation. The first appellate order revealed that the appeal was dismissed based on the timeline issue. It was noted that the Order-in-Original was issued on a specific date, and the first appeal was filed after a certain period. The judgment highlighted that the Commissioner (Appeals) did not ascertain whether the original order was sent to the correct address via registered post. The Tribunal emphasized the importance of this finding to determine the validity of the limitation issue and suggested that the Commissioner should have explored the possibility of utilizing the proviso to Section 85 of the Finance Act, 1994.

The Tribunal elucidated on the statutory provision governing the limitation period, which was three months under Section 85(3) with a discretionary extension of another three months under a proviso. The judgment emphasized that the Commissioner (Appeals) had the authority to condone the delay beyond the initial three months if satisfied with the existence of a sufficient cause preventing the appellant from filing the appeal within the prescribed time frame. The Tribunal referenced a Supreme Court decision to underscore that while the length of delay should not prejudice the interest of justice, the cause of delay was a crucial factor to be considered.

In its decision, the Tribunal remanded the matter back to the Commissioner (Appeals) to reevaluate the existence of a sufficient cause that could warrant the exercise of discretionary power to condone the delay. The appellant was directed to submit an application explaining the delay, and the Commissioner was instructed to pass an appropriate order after considering the explanation provided. The judgment emphasized the need for a fair opportunity to be granted to the appellant in this regard.

Conclusively, the Tribunal disposed of both the stay application and the appeal in light of the above considerations, ensuring that the issue of limitation was addressed through a thorough reexamination by the Commissioner (Appeals).