2021 (4) TMI 426 - AT - Service Tax

Condonation of delay in filing appeal - no sufficient cause for delay shown - Recovery of Refund of Service Tax - principles of unjust enrichment - Section 35 of Central Excise Act - HELD THAT - There is no denial that the impugned appeals were filed before Commissioner (Appeals) after a delay of one month and 20 days. There is also no denial to the fact that no sufficient reason was explained to Commissioner (Appeals) for the said delay. Learned Counsel for appellant even today has not cited any reason which may be considered as sufficient cause for the impugned delay of one month and 20 days for filing an appeal before Commissioner (Appeals) in terms of Section 35 of Central Excise Act, 1944. The prescribed period for filing appeal before Commissioner (Appeals) is two months, however, delay of one month is condonable by the Commissioner subject to a sufficient cause being shown to him by the appellant. As is apparent from the impugned order, there is no such sufficient cause shown. Appeal dismissed - decided against appellant.

Summary

Issues:
1. Delay in filing appeals before Commissioner (Appeals) and grounds for dismissal.
2. Applicability of Section 35 of the Central Excise Act, 1944 in condoning delay.
3. Statutory mandate and judicial precedents regarding the condonation of delay in filing appeals.

Analysis:
1. The judgment concerns the dismissal of appeals by the Commissioner (Appeals) due to a delay of one month and 20 days in filing them. The appellants, private tour operators providing services to pilgrims, had filed refund claims for service tax paid on exempted services. The Commissioner (Appeals) dismissed the appeals citing the delay as the reason, leading to the appellants challenging this decision.

2. The Tribunal observed that the delay in filing the appeals was not disputed, and no sufficient reasons were provided for the delay. The appellants failed to present any justifiable cause for the delay, as required under Section 35 of the Central Excise Act, 1944. The Commissioner (Appeals) has the authority to condone a delay of up to one month, subject to a valid reason being presented, which was not the case here.

3. Referring to the statutory provision of Section 35 and the case law of Singh Enterprises versus Commissioner of Central Excise, Jamshedpur, the Tribunal emphasized that the appellate authority has the power to condone a delay only up to 30 days beyond the prescribed period of 60 days for filing appeals. The judgment highlighted that the legislative intent was to restrict the condonation of delay to 30 days beyond the initial 60-day period, excluding the application of Section 5 of the Limitation Act.

4. Consequently, the Tribunal upheld the decision of the Commissioner (Appeals) to dismiss the appeals due to the unexplained delay of one month and 20 days, in line with the statutory mandate of Section 35. The judgment concluded by dismissing all three appeals based on the failure to meet the statutory requirements for condoning the delay in filing the appeals.

This detailed analysis of the judgment provides insights into the legal issues surrounding the dismissal of appeals due to a delay in filing and the application of relevant statutory provisions and judicial precedents in such cases.