2013 (7) TMI 328 - AT - Service Tax

Competency to entertain the appeal - Preliminary objection was raised by the department was that the order was passed by the JC and appeal against it should have been preferred to the Commissioner (Appeals) Held that - appellant appeal is not maintainable - the present appeal was filed with the Tribunal at a time when much time was left for the appellant to prefer an appeal to the Commissioner (Appeals) - According to the tenor the appellant was ill-advised - he blindly chose to go by the defective preamble to the order-in-original rather than by the provisions of the statute - Even after receipt of the corrected preamble to the order-in-original, the appellant did not care to take corrective measures - he proceeded to file the present appeal appeal decided against the assessee. The plea of the learned consultant for transmitting the appeal to the Commissioner (Appeals) or for issuing other directions to the Commissioner (Appeals) cannot be accepted as we do not have equitable powers. Such a course of action can invite more appeals of this nature from ill-advised parties.

Summary

Issues:
1. Jurisdictional error in filing appeal.
2. Correct forum for appeal - CESTAT or Commissioner (Appeals).
3. Delay in filing appeal and condonation of delay.
4. Equitable powers of the Tribunal.

Analysis:
1. The appellant filed a stay application seeking waiver of pre-deposit and stay of recovery in relation to the adjudged dues. A preliminary objection was raised by the Additional Commissioner (AR) stating that the appeal should have been preferred to the Commissioner (Appeals) instead of the Tribunal as the impugned order was passed by the Joint Commissioner. The appellant filed a miscellaneous application in response to this objection.

2. The appellant's consultant argued that the appeal was filed with the Tribunal based on the preamble of the order-in-original, which directed appeals to be made to the Tribunal. However, a subsequent appeal was filed with the Commissioner (Appeals) after realizing the mistake, but it was returned as time-barred. The Tribunal noted the issuance of a corrigendum to the order-in-original advising appeals to be made to the Commissioner (Appeals), which the appellant acknowledged. The appellant requested the Tribunal to transmit the appeal to the Commissioner (Appeals) and condone the delay.

3. The Tribunal considered the submissions and found that the appellant had ample time to file the appeal with the Commissioner (Appeals) within the statutory period. However, the appellant chose to file the appeal with the Tribunal despite the corrected advice in the corrigendum. The Tribunal also highlighted the Registry's oversight in not returning the appeal due to jurisdictional errors. Despite the appellant's plea for equitable considerations, the Tribunal emphasized the supremacy of the statute and dismissed the appeal as not maintainable, along with the two applications.

4. The Tribunal concluded that deviating from the relevant provisions of law to transmit the appeal to the Commissioner (Appeals) would set a precedent for more such appeals from ill-advised parties. Therefore, the Tribunal upheld the importance of adhering to the statutory provisions and dismissed the appeal, emphasizing that equitable powers were not applicable in this situation.