2015 (12) TMI 681 - AT - Service Tax

Condonation of delay - Delay of 29 days - Held that - LAA dismissed appeal on limitation by applying the provisions of new Section 35 of the Central Excise Act where the period is reduced from 3 months to 60 days. As per pre-amended provisions of Section 35 (30 of Central Excise Act appeal shall be presented within 3 months from the date of receipt of order and Commissioner (Appeals) may if he is satisfied allow further period of 3 months. In the present case, appellant filed appeal on 12.10.2011 immediately after three months and it well within the powers of Commissioner (Appeals) with a delay of one day which is condoned. Therefore, we find that appeal has been filed before Commissioner (Appeals) is well within the time limit as per Section 35 of the Act during the relevant period as the OIO was dt.5.9.2011 and the amended provisions introduced w.e.f. 28.5.2012. Accordingly, we set aside the impugned order - Matter remanded back - Decided in favour of assessee.

Summary

Issues: Appeal dismissed on limitation based on delay in filing within the prescribed period.

In this judgment, the main issue revolved around the dismissal of an appeal by the Commissioner (Appeals) due to a delay of 129 days in filing the appeal, beyond the permissible period of 90 days. The appellant argued that the Order-In-Original (OIO) was passed on 5.9.2011 and received on 12.10.2011, with the appeal filed on 12.1.2012. The appellant contended that the appeal was filed within the time limit as per the pre-amended Section 85(3), allowing for an initial period of 3 months and a further extended period of 3 months, subject to the satisfaction of the Commissioner (Appeals). The appellant also highlighted that the appeal was correctly filed within the time limit as per the old provision of Section 35, despite the newly amended provisions reducing the time limit to 60 days. The appellant further mentioned the payment of the entire service tax amount and relied on specific case laws to support their argument.

Upon hearing both sides, the Tribunal observed that the OIO was dated 5.9.2011, received on 12.10.2011, and the appeal was filed on 12.1.2012. The Tribunal noted that the Commissioner (Appeals) had dismissed the appeal on limitation by applying the provisions of the new Section 35 of the Central Excise Act, which reduced the filing period to 60 days. However, considering the pre-amended provisions of Section 35, where an appeal should be presented within 3 months from the date of receipt of the order, the Tribunal found that the appellant had filed the appeal within the prescribed time limit. The Tribunal concluded that the appeal was well within the time limit as per the relevant provisions of the Act during the period between the OIO date and the introduction of the amended provisions. Consequently, the Tribunal set aside the impugned order and allowed the appeal by remanding it back to the Commissioner (Appeals) for a decision on merit after providing a reasonable opportunity to the appellant. The appeal was allowed by remand, and the stay application was disposed of accordingly.