2015 (1) TMI 1192 - AT - Service Tax

Delay in filing of appeal - Bar of limitation - Power of Commissioner to condone delay - Denial of refund claim - Held that - On a true and fair construction of the amended provision , it is clear that an appeal is required to be presented within two months from the date of receipt of the decision or order of such adjudicating authority, which is made on or after the Finance Bill, 2012, receives the assent of the President. Since the assent of the President was granted on 28-5-2012, the amended provision would not apply to the adjudication order passed by the Assistant Commissioner on 21-5-2012. The date of dispatch of the adjudication order on 13-6-2012, is a wholly irrelevant factor. - Since the adjudication order against which the appeal was preferred to the Appellate Commissioner was passed on 21-5-2012, (prior to the date the relevant provision of the Finance Bill, 2012 had received the assent of the President i.e., on 28-5-2012) the amended provision prescribing a new period of limitation and the proviso to sub-section (3A), which authorizes the Assistant Commissioner to condone the delay if the appeal is presented within further period of one month (beyond the normal period of limitation of two months) would not be applicable. The unamended limitation period as specified in Section 85(3) is the applicable provision. Conclusion recorded by the ld. Commissioner (Appeals) that the appellant herein had presented the appeal beyond the further period of limitation and outside powers of the appellate Commissioner to condone, qua the amended Section (3A) of Section 85, is a fallacious conclusion based on an imperfect analysis of the relevant provision, is unsustainable and is accordingly quashed. The matter is remanded to the ld. Appellate Commissioner for consideration of the COD application on its merits - Decided in favour of assessee.

Summary

Issues:
1. Appeal against denial of Service Tax refund.
2. Condonation of delay in filing the appeal.
3. Interpretation of amended Section 85(3A) of the Finance Act, 1994.

Analysis:
1. The appellant filed an appeal against the denial of a Service Tax refund by the Assistant Commissioner. The Commissioner (Appeals) rejected the appeal due to a delay of 112 days beyond the two-month limitation period set by the amended Section 85(3A) of the Finance Act, 1994. The appellant received the adjudication order on 14-6-2012 and filed the appeal on 4-12-2012, within the extended three-month period under the pre-amended provision.

2. The Commissioner (Appeals) based the dismissal of the appeal on the amended provision introduced on 28-5-2012, which reduced the appeal filing period to two months. However, the President's assent to the Finance Bill, 2012 on 28-5-2012 did not apply retrospectively to the adjudication order passed on 21-5-2012. Therefore, the unamended Section 85(3) with a three-month appeal filing period was applicable in this case.

3. The Tribunal found the Commissioner (Appeals)' conclusion regarding the delay in filing the appeal under the amended Section 85(3A) to be erroneous. The Tribunal held that the amended provision did not govern appeals against adjudication orders issued before the President's assent to the Finance Bill, 2012. Consequently, the matter was remanded to the Appellate Commissioner for a reconsideration of the Condonation of Delay (COD) application under the pre-amended provision.

In conclusion, the Tribunal set aside the Commissioner (Appeals)' decision, emphasizing the inapplicability of the amended provision to the case at hand and directing a fresh review of the COD application based on the correct interpretation of the relevant legal provisions.