2021 (8) TMI 1160 - AT - Service Tax

Maintainability of appeal - appeal not filed in time - non-compliance of Section 35 F of Central Excise Act - HELD THAT - Apparently and admittedly the appeal against Order-in-Original date4d 20th March, 2019 was filed on 4th June, 2019. Admittedly the order was received by the appellant on 25th March, 2019. In terms of Section 35 F of CEA, 1944, the appeal against the said order would have been filed within two months reckoning from 25th March, 2019. Apparently and admittedly, the appeal was filed on 4th June, 2019 i.e. beyond the said period of two months. No doubt Section 35 F gives power to Commissioner (Appeals) to condone the delay for another a month and to accept the appeal which is filed not later than three months from the receipt of order challenged before him and the appeal in hand was filed within said three months period. But there has been a statutory mandate that the said time extension of one month could be provided only when there has been a sufficient cause which restrained the assessee from filing the appeal within the two months from the date of the receipt of the order. There are no reason to differ with the case law relied upon by the appellant but the said decisions are not applicable to the above discussed facts and circumstances of the present case. Even if, the date of appeal is allowed to be that of 4th June, 2019 instead of 29th June, 2019 still the appeal is beyond the permissible period of two months, with no sufficient explanation of delay beyond said two months. Appeal dismissed.

Summary

Issues:
- Appeal rejection for non-compliance of Section 35 F of Central Excise Act
- Delay in filing the appeal
- Consideration of pre-deposit for appeal filing date

Analysis:
The judgment pertains to an appeal challenging the rejection of the appellant's appeal for non-compliance with Section 35 F of the Central Excise Act due to a delay in filing. The appellant contended that the appeal was filed late due to the unavailability of the ACS System for pre-deposit allotment. The appellant argued that the appeal should be considered filed on the date of actual filing, citing relevant case laws. The Department, however, emphasized the findings of the Commissioner (Appeals) and urged for dismissal of the appeal.

Upon review, the Member (Judicial) noted that the appeal was filed beyond the two-month period stipulated by Section 35 F of the Act, despite being received by the appellant earlier. While the Act allows for a one-month extension under certain conditions, no valid reason for the delay was presented in the appeal record. Despite acknowledging the case laws cited by the appellant, the Member found them inapplicable to the circumstances of the case. Even if the appeal date was considered from the actual filing date, it still exceeded the permissible two-month period with insufficient justification for the delay. Consequently, the Member upheld the Commissioner (Appeals)'s decision to dismiss the appeal, as the statutory requirements were not met.

In conclusion, the judgment emphasizes the importance of timely compliance with statutory provisions and the necessity of providing valid reasons for any delays in legal proceedings. The decision underscores the significance of meeting procedural requirements within the prescribed timelines to ensure the efficacy and validity of appeals in accordance with the Central Excise Act.