2024 (2) TMI 1022 - HC - Service Tax

Condonation of delay in filing appeal - appeal was filed beyond the normal period of limitation, but within the period within which the delay - delay can be condoned by the Appellate Commissioner under Section 85(3A) of the Finance Act, 1994 or not - HELD THAT - It is evident that the petitioner cannot be denied the opportunity of the delay being condoned. The Office of the Commissioner of GST and Central Excise (Appeal) has numbered the appeal without issuing defect Memo to the petitioner stating that the appeal was beyond the statutory time limit of two months from the date of receipt of Order-in-Original No. 81/2022-CHN (ADC) dated 06.05.2022. The petitioner should have been called upon to explain how the appeal was maintainable without an application for condoning the delay. If such an opportunity was given, perhaps, the petitioner could have filed appropriate application to condone the delay. Instead of, the Appellate Commissioner has straight away proceeded to pass the impugned order. The impugned order is liable to be set aside and the case is liable remitted back to the respondent. The petitioner shall therefore file an application for condoning the delay explaining the reasons for delay in filing the appeal on 02.08.2022 within a period of 15 days from the date of receipt of a copy of this order - Petition disposed off.

Summary

Issues involved:
The petitioner filed an appeal beyond the normal period of limitation, seeking condonation of delay under Section 85(3A) of the Finance Act, 1994. The Appellate Commissioner dismissed the appeal due to the delay in filing and lack of reasons provided for condonation.

Summary:

Issue 1: Delay in filing appeal and condonation

The petitioner was aggrieved by the dismissal of the appeal by the Appellate Commissioner due to filing beyond the normal period of limitation. The Appellate Commissioner cited the statutory time limit of two months for filing an appeal, with a provision to condone a delay of up to one month if sufficient cause is shown. However, the petitioner did not provide any reasons for the delay in filing the appeal, leading to its rejection. The Court noted that the petitioner should have been given an opportunity to explain the delay and file an application for condonation. The impugned order was set aside, and the case was remitted back to the respondent for the petitioner to file an application for condoning the delay within 15 days. If the delay is properly explained and condoned, the appeal will be heard on merits within 75 days.

Issue 2: Procedural fairness

The Court observed that the petitioner was not given the opportunity to explain the delay in filing the appeal before the Appellate Commissioner passed the impugned order. The Court emphasized the importance of procedural fairness in such matters, stating that the petitioner should have been called upon to clarify the maintainability of the appeal without an application for condoning the delay. This lack of opportunity hindered the petitioner's ability to present reasons for the delay and seek condonation in accordance with the law.

Conclusion

The Court disposed of the writ petition at the time of admission, without imposing any costs. The connected miscellaneous petition was also closed as a result of the judgment. The Court's decision focused on ensuring procedural fairness and providing the petitioner with the opportunity to seek condonation of the delay in filing the appeal, emphasizing the importance of following statutory timelines and procedures under the Finance Act, 1994.