2018 (8) TMI 1592 - AT - Service Tax

Delay in filing appeal - appeal was filed 69 days after the receipt of order-in-original without a delay condonation application - Held that - It is found that the order-in-original dates 31.03.2017 and the statement of fact indicates that it was served upon the appellant on 23.04.2017 i.e. within 3 weeks of such pronouncement of order-in-original but the Commissioner (Appeals) has extracted Section 85(3A) and proviso appended to it to give his finding that he was not competent to condone the subsequent delay in the absence of an application to that effect. The appeal can be presented within two months from the date of receipt of order-in-original and in the instant case, statement of fact reveal that it was received on 23.04.2017 and the same statement of fact is supposed to be verified by the appellant himself, which is also done in the instant case. The gap between the pronouncement of order-in-original and its communication, going by the date mentioned in the statement of fact is just 23 days. Therefore it cannot be believed to be untrue - in view of the proviso enabling the Commissioner (Appeals) to allow the appeal to be presented after two months but within a further period of one month assigning sufficient reason to his satisfaction, such presentation can be accepted by him before proceeding to hear the case in its totality, which is not done at his end. The appeal is filed within the stipulated period and to the disagreement of the Commissioner, within his condonable period. Hence the same should have been admitted at his end and the issue could have been settled on merit - Appeal is allowed and the matter is remitted back to the Commissioner (Appeals) for hearing the appeal afresh on merit.

Summary

Issues involved:
1. Challenge to the order of the Commissioner of Central tax for not considering the appeal on merit due to a delay in filing without a condonation application.

Detailed Analysis:
The appellant challenged the decision of the Commissioner of Central tax (Appeals-I) for not addressing the merits of the case during the final disposal of the appeal. The appeal was filed 69 days after receiving the order-in-original without a delay condonation application. The appellant contended that the order was received on 23.04.2017, but due to a typographical error in the ST-4 form, the date of communication was mentioned as 12.04.2017. The appeal was filed on 21.06.2017, leading to a 9-day delay according to the Commissioner (Appeals), who cited precedents like Singh Enterprises and Prithvi Hotels to dismiss the appeal.

The respondent, represented by the department's AR, argued that no irregularity was found in the Commissioner (Appeals)'s order since no condonation of delay application was filed within the condonable period of 30 days available at the Commissioner (Appeals)'s discretion. After hearing both sides and examining the case papers, it was noted that the order-in-original was dated 31.03.2017 and served on the appellant on 23.04.2017, within 3 weeks of the pronouncement. The Commissioner (Appeals) referred to Section 85(3A) and its proviso to justify his decision that he lacked the authority to condone subsequent delays without an application.

The Tribunal observed that an appeal must be filed within two months of receiving the adjudicating authority's decision. In this case, the statement of fact confirmed the receipt on 23.04.2017, which was verified by the appellant. The gap between the pronouncement and communication of the order was 23 days, making the appeal filed on 21.06.2017 within the two-month period. Even if the Commissioner doubted the date, the proviso allowed for a further 30-day extension. The Tribunal highlighted the distinction between extending time for appeal presentation and condoning delay post-presentation, citing a Supreme Court judgment. As per Section 86(1) of the Finance Act, 1994, the Tribunal could only hear appeals against orders of the Commissioner (Appeals), not directly against the adjudicating authority's order.

Therefore, the Tribunal allowed the appeal, remitting the matter back to the Commissioner (Appeals) for a fresh hearing on merit, emphasizing that the appeal was filed within the stipulated period and should have been admitted for consideration.