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2023 (7) TMI 1023 - HC - Service TaxCondonation of delay in filing appeal before Commissioner (Appeals) - requirement to file appeal within a maximum period of three months in terms of Section 85 of the Finance Act, 1994 - HELD THAT - Upon perusal of the record, it is seen that the order passed by the authorities dated 26.09.2019 was served upon one Shivpal Singh as indicated by the petitioner and was delivered on 07.10.2019 through Speed Post. The petitioner has admitted in his application filed under the Right to Information Act that he has received a letter from the Range Superintendent, Sehore on 04.12.2020 wherein he was asked to pay service tax along with interest in compliance of the impugned order. This would indicate that the petitioner was having the knowledge of passing of the impugned order on 04.12.2020. In terms of Section 85 of the Finance Act, 1994, the appeals are required to be presented within two months from the date of receipt of the decision or the order passed by adjudicating authority, provided that the Commissioner of Central Excise (Appeals) is having power to condone the delay, if he is satisfied by the reasons assigned. But, the same can only be done if the appeal is filed within a further period of one month. Thus, the Commissioner (Appeals) can only condone the delay beyond the period of prescribed limitation to the extent of one month. In the present case, the appeal has been filed on 01.06.2021 i.e. after the delay of one and a half years from the date of passing of the impugned order. The Hon'ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR 2007 (12) TMI 11 - SUPREME COURT has clarified the aforesaid position with respect to the period of limitation and has categorically held that there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period. In the light of the aforesaid decision, it is clear that the Commissioner (Appeals) can only condone the delay in filing an appeal if the same is barred by one month and the Commissioner is not having any power to condone the delay in filing the appeal after expiry of 30 days period. In view of the judgment passed by the Hon'ble Supreme Court in the case of Singh Enterprises as well as Section 85 of the Finance Act, 1994, it is apparently clear that the Commissioner (Appeals) was not having any power to condone the delay which was huge in terms of the Finance Act, 1994 practically of one and a half years from the date of passing of the order. Under these circumstances, no illegality is committed by the appellate authority in dismissing the appeal on the ground of limitation. Petition dismissed.
Issues involved:
Challenge to order dismissing appeal on ground of limitation. Issue 1: Service of order and limitation for filing appeal The petitioner, a contractor engaged in works contracts, challenged an order determining demands and penalty for non-payment of service tax. The petitioner argued that the order was never served to him as required by law. The Commissioner (Appeals) dismissed the appeal as highly delayed, citing the limitation period of three months under Section 85 of the Finance Act, 1994. Details: The petitioner contended that the order was served on someone other than him, and he only became aware of it after the person's death. He argued that despite having an alternative remedy to approach the Customs, Excise and Service Tax Appellate Tribunal, the delay in filing the appeal should be considered by the court. The petitioner claimed that non-compliance with the service requirements invalidated the order served. Issue 2: Condonation of delay in filing appeal The court examined the timeline of events and the provisions of Section 85 of the Finance Act, 1994 regarding the limitation for filing appeals. The court noted that the appeal was filed after a delay of one and a half years from the date of the impugned order, exceeding the statutory limitation period. Details: Referring to the decision in Singh Enterprises vs CCE, the court emphasized that the Commissioner (Appeals) does not have the authority to condone delays beyond the prescribed limits. The court clarified that the statute allows for a specific period for filing appeals and does not permit extensions beyond what is provided. Conclusion: Based on the legal principles outlined in the Singh Enterprises case and Section 85 of the Finance Act, 1994, the court found that the Commissioner (Appeals) was justified in dismissing the appeal due to the significant delay in filing. The court upheld the decision, stating that no illegality was committed by the appellate authority. Consequently, the writ petition was dismissed for lack of merit, with no costs awarded.
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