2015 (9) TMI 1038 - HC - Service Tax

Wrongful availment of cenvat credit - outward transportation of the goods - no error has been committed by the Commissioner(Appeals) as per Section 85 of the Finance Act, 1994 - Held that - Reasons cannot be presumed by the Commissioner (Appeals), much less reasonable reasons for condonation of delay. There ought to be an application for condonation of delay and thereafter the reasons can be appreciated by the concerned authority - the office of the Commissioner (Appeals) should have pointed an office objection or defect in filing appeal, that the appeal is filed without any delay of condonation application, and, as there was no office objection found out, the petitioner had not filed any delay of condonation application. This type of convenient argument is not accepted by this Court, because the petitioner is a company limited and is not an illiterate ignorant person. Always petitioner is arguing the case with the help of the lawyers. Even otherwise also ignorentia juris non excusate. Thus, ignorance of law is not excuse. The petitioner cannot say that there ought to have been office defect pointed out by the office of Commissioner (Appeals), otherwise the petitioner will never file delay of condonation application. Every body should know the law and should have filed the delay of condonation application, if there is only delay in preferring appeal. - no reason to interfere with the order passed by the Commissioner (Appeals) - Decided against assessee.

Issues:
1. Delay in filing appeal before the Commissioner (Appeals) and the condonation of delay.
2. Interpretation of Section 85 of the Finance Act, 1994 regarding the condonation of delay.
3. Duty of the Commissioner (Appeals) to point out defects in appeal filings.

Analysis:
1. The writ petition was filed against the order of the Commissioner (Appeals) dismissing an appeal due to a delay of 14 days in filing. The petitioner argued that the delay of 14 days should have been condoned by the Commissioner (Appeals) as it was within the 90-day condonable period. The petitioner claimed that the office of the Commissioner (Appeals) did not point out the delay, and thus, they did not file a delay condonation application. The petitioner contended that they were not given an opportunity to file the condonation application. However, the Union of India argued that the petitioner, being a company limited, should have been aware of the provisions of Section 85 of the Finance Act, 1994, and should have filed the delay condonation application. The Court noted that the delay was beyond the limitation period, and since no condonation application was filed, the appeal was rightly dismissed by the Commissioner (Appeals).

2. The Court emphasized that under Section 85 of the Finance Act, 1994, the Commissioner (Appeals) cannot presume reasonable reasons for condonation of delay without an application for condonation. The petitioner's argument that the office of the Commissioner (Appeals) should have pointed out the defect in filing the appeal without a delay condonation application was rejected. The Court held that ignorance of the law is not an excuse, especially for a company limited, which should be aware of legal procedures. The Court stated that every party should know the law and file a delay condonation application if there is a delay in filing the appeal.

3. The Court, after considering the arguments from both sides, found no reason to interfere with the order of the Commissioner (Appeals) dated 13.08.2012. The Court highlighted that the petitioner had failed to adhere to the statutory timelines for filing the appeal and did not follow the necessary procedures for condonation of delay. The Court dismissed the writ petition, stating that there was no substance in the petitioner's arguments and upheld the decision of the Commissioner (Appeals) to dismiss the appeal due to the delay in filing without a condonation application.

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