2019 (11) TMI 439 - AT - Service Tax

Condonation of delay in filing an appeal before Commissioner (Appeals) - time limitation - demand of service tax on license amount paid by him to Chhattisgarh State Excise department for obtaining license for conducting the aforesaid business of retail sale liquor in malls - reverse charge mechanism - whether Commissioner (Appeals) has rightly held the appeal before him to be barred by time? HELD THAT - The appeal can be filed in a period of 60 days from the date of communication of the said decision to the aggrieved person. Commissioner (Appeals) has a power to condone delay of subsequent 30 days in case some sufficient cause preventing the appellant to present the appeal within the said time is shown to him. There is no denial on part of the appellant for receiving the show-cause notice and no apparent demand for seeking an opportunity to reply. The initial adjudicating proceedings were also in his notice and even his employee appeared on 04.10.2017. Apparently and admittedly there is no effort on part of the appellant to enquire the status of his proceedings till he received the e-mail dated 27.07.2018. From the order-in-appeal para-3 thereof, it is rather observed that the appellant while filing an appeal before Commissioner (Appeals) had also filed an application praying for condonation of delay of 24 days on the ground that the said order was received over e-mail on 27.07.2018 by Shri Sadanand Singh, Manager of the appellant who underlined part from para 3 of 01 A. The said application amount to dismissal in view of the order of Commissioner (Appeals) dismissing the appeal as a whole on ground of limitation. The appellant herein has committed an intentional delay despite that the pendency of proceedings and even the order-in-original was in his notice. The date of information about recovery proceedings is also missing in the appellant s submission. The reasons quoted by the appellant due to which he was prevented from filing the appeal in time are, therefore, not sufficient explanation for the delay. Since apparently and admittedly the order assailed in the present appeal is passed only on the ground of limitation, touching the merits of the case is not possible at this Tribunal level. Appeal dismissed.

Summary

Issues:
1. Appeal dismissed on the ground of limitation.
2. Whether the appeal was filed within the statutory period.
3. Commissioner's power to condone delay in filing the appeal.

Analysis:
1. The appellant's appeal was dismissed by the Commissioner (Appeals) on the ground of limitation as it was filed beyond the prescribed time limit. The appellant challenged this decision before the Tribunal.

2. The appellant argued that they were not aware of the order-in-original dated 05.12.2017 until they received a call from the department for recovery, which was communicated to them via email on 27.07.2018. The appeal was filed on 25.09.2018, within the statutory period. The appellant also claimed that the licensee fee paid to the government was exempt from service tax retrospectively, as per a government notification and circular.

3. The Commissioner (Appeals) justified the dismissal of the appeal, stating that it was not filed within the initial 60-day period or the subsequent 30-day extension allowed for sufficient cause. The Tribunal noted that the appellant had received the order-in-original in due time, as evidenced by their employee's appearance during the adjudication process. The appellant's argument of not receiving the order promptly was dismissed, as they had voluntarily requested the order via email after being informed of the recovery proceedings. The Tribunal held that the appellant's reasons for the delay were insufficient, and the Commissioner (Appeals) had no statutory power to condone a delay beyond the specified period.

In conclusion, the Tribunal upheld the Commissioner (Appeals)' decision to dismiss the appeal on the ground of limitation, citing the lack of sufficient cause for the delay in filing the appeal. The judgment emphasized the statutory limitations on the appellate authority's power to condone delays beyond the prescribed period.