2023 (5) TMI 1152 - AT - Service Tax

Condonation of delay in filing appeal - sufficient explanation for delay provided or not - appeal dismissed only for the reason that it was filed beyond the statutory time period contemplated under section 85 of the Finance Act, 1994 - HELD THAT - A perusal of sub-section (1) of Section 85 shows that any person aggrieved by any decision or order passed by the Adjudicating Authority, may file an appeal to the Commissioner of Central Excise (Appeals). Sub-section (3A) of section 85 provided that the appeal shall be presented within two months from the date of receipt of the order of such Adjudicating Authority but the proviso provides that the Commissioner (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. In the instant case, the Commissioner (Appeals) has found that the appeal that was filed on February 11, 2019 was not only filed beyond the period of two months from the order dated January 16, 2018 but was even beyond the extended period of one month and so dismissed the appeal for the reason that there was no power to condone any delay beyond one month after the expiry of one month - The Commissioner (Appeals), however, as is clear from the order dated July 22, 2019, observed the appellant had not submitted any explanation for delay in receipt of the order. Once the appellant had indicated in ST-IV form that the order was received by the appellant only on December 21, 2018, then it was for the Department to have controverted that the order had been received by the appellant earlier to this date and an explanation for the delay should not have been expected from the appellant. Thus, as the order was actually served upon the appellant only on December 21, 2018 and the appeal was filed on February 11, 2019 which would be within two months from the date of receipt of the order, the dismissal of the appeal by the Commissioner (Appeals) only for the reason that it was filed beyond the statutory period prescribed under sub-section (3A) of section 85 of the Finance Act deserves to be set aside. The impugned order dated July 22, 2019 is, accordingly, set aside and the matter is remitted to the Commissioner (Appeals) to decide the appeal on merits - appeal allowed.

Summary

Issues:
The appeal was dismissed for being filed beyond the statutory time period under section 85 of the Finance Act, 1994.

Issue 1: Statutory Time Limit for Filing Appeal
- Sub-section (1) of Section 85 allows any person aggrieved by a decision or order to appeal to the Commissioner of Central Excise (Appeals).
- Sub-section (3A) of section 85 requires the appeal to be presented within two months from the date of the order, with a provision for extension by one month if sufficient cause is shown.
- The Commissioner (Appeals) dismissed the appeal as it was filed beyond the extended period of one month after the initial two-month period.
- The appellant argued that the order was received on December 21, 2018, and the appeal filed on February 11, 2019, within the two-month period.
- The Assistant Commissioner confirmed in a communication that the order was received by the appellant on December 21, 2018, supporting the appellant's claim.
- The dismissal of the appeal solely based on exceeding the statutory period was set aside, and the matter was remitted to the Commissioner (Appeals) for a decision on merits.

Outcome:
The appeal was allowed, and the order dismissing the appeal for being filed beyond the statutory time period was set aside. The matter was remitted to the Commissioner (Appeals) for a decision on the merits, with a directive to handle the case promptly due to its age.