2016 (1) TMI 926 - HC - Service Tax

Delay in filing of an appeal before Commissioner (Appeals) - Appellant contended that, there has been no real delay in the filing of the appeal - Revenue contended that assessee has filed the appeal beyond the condonable period - At this stage of the hearing of the above matters, the learned counsel appearing on behalf of the assessee had submitted that the assessee may be permitted to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal, under Section 86 of the Finance Act, 1994, on depositing 10% of the service tax demanded by the department, leaving it open to the assessee to show that in fact, there was no delay in the filing of the appeal before the Commissioner (Appeals), while challenging the Order-in-Original, dated 27.1.2011. Held that - this court finds it appropriate to permit the assessee to prefer an appeal against the order of the Commissioner of Appeals, dated 27.1.2011, before the Customs, Excise and Service Tax Appellate Tribunal, within 15 days from the date of the receipt of a copy of this order. The assessee shall deposit 10% of the service tax demanded by the department, before the filing of the said appeal. It would be open to the assessee to prove, by sufficient evidence, before the Appellate Tribunal, that the appeal filed by the assessee, before the Commissioner of Appeals, was within the time limit prescribed by the relevant provisions of law.

Summary

Issues:
1. Challenge to service tax proceedings under Section 87 of the Finance Act, 1994 for the period from October 2007 to March 2010.
2. Appeal against the order passed by a single Judge in a related case.
3. Determination of delay in filing an appeal before the Commissioner of Appeals.
4. Interpretation of Section 85(3) of the Finance Act, 1994 regarding the time limit for filing appeals.
5. Consideration of the power of the Commissioner of Appeals to condone delays in filing appeals.
6. Permission to file an appeal before the Customs, Excise and Service Tax Appellate Tribunal.
7. Conditions imposed on the assessee to prove the timeliness of the appeal filing.

The judgment addressed a Writ Petition challenging service tax proceedings under Section 87 of the Finance Act, 1994 for the period from October 2007 to March 2010. The appellant sought to quash the proceedings and prevent recovery of the tax based on exemption claims. The Writ Appeal was filed against a previous order by a single Judge. The court consolidated both cases due to common issues. The appellant argued that the tax was exempt under the Indian Railways Act and contested the delay in filing the appeal before the Commissioner of Appeals. The respondents maintained that the appeal was time-barred under Section 85(3) of the Finance Act, 1994, with no grounds for condonation beyond the permissible period. Citing precedent, they argued against the Commissioner's power to extend the filing deadline.

During the proceedings, the appellant requested permission to appeal before the Customs, Excise and Service Tax Appellate Tribunal by depositing 10% of the tax amount. The court allowed this request, with the condition that the appellant proves the timeliness of the initial appeal filing. The respondents did not object to this order but emphasized the need for compliance with court conditions and the burden of proof on the appellant. The court granted the appellant 15 days to file the appeal and deposit the required amount, emphasizing the need for evidence to establish the appeal's compliance with legal time limits.

The judgment concluded by instructing the Appellate Tribunal to consider the timeliness of the appeal filing. If convinced of the appellant's reasons for the delay, the Tribunal was to proceed with the appeal's merits. However, if unconvinced, the Tribunal was not obligated to delve into the case's substance. The court directed the Tribunal to expedite proceedings based on its directions. Ultimately, the Writ Petition and Writ Appeal were disposed of with the specified directives, without imposing any costs.