2024 (10) TMI 819 - AT - Service Tax

Dismissal of appeal on the ground of limitation contemplated under section 85 of the Finance Act, 1994 - order sought to be impugned was received by the appellant on 04.04.2018, but the appeal was filed on 06.06.2018 without a delay condonation application - HELD THAT - The appellant does not dispute that the appeal was filed in the office of the Commissioner (Appeals) on 06.06.2018. The appellant also does not dispute that the order against which the appeal was filed was received by the appellant on 04.04.2018. The period of two months would expire on 03.06.2018 but the appeal, as noted above, was filed on 06.06.2018. However, what needs to be noted is that the office of the Commissioner (Appeals) allotted a regular number to the appeal and information was also sent to the appellant for final hearing of the appeal without informing the appellant that the appeal was defective as there was a delay of 3 days in filing the appeal. The order passed by the Commissioner (Appeals) also does not mention that during the course of the hearing of the appeal, learned counsel for the appellant was apprised that there was a delay and the appeal was not accompanied by a delay condonation application. It will, therefore, not be possible to sustain the order dated 28.09.2018 passed by the Commissioner (Appeals) - Appeal allowed.

Summary

Issues: Appeal against dismissal on grounds of limitation under section 85 of the Finance Act, 1994.

In this case, the appellant filed an appeal against the order passed by the Commissioner (Appeals) dismissing the appeal on the ground of limitation under section 85 of the Finance Act, 1994. The appellant received the order on 04.04.2018 but filed the appeal on 06.06.2018 without a delay condonation application. The Commissioner (Appeals) noted that the appeal was filed 3 days late and did not allow additional time for filing the appeal under the proviso to section 85(3A) of the Act. The appellant argued that they were not informed of the delay by the Commissioner's office, and as the appeal was numbered and a notice for final hearing was sent, they believed it was filed on time. The department supported the dismissal of the appeal due to the lack of a delay condonation application. The Tribunal considered the submissions and noted that the appellant did not dispute the delay but highlighted that the office of the Commissioner (Appeals) did not inform the appellant about the delay during the proceedings or in the order. Citing a Kerala High Court decision, the Tribunal held that without notifying the appellant of the delay, the appeal could not be deemed as not maintainable due to limitation. Therefore, the Tribunal set aside the Commissioner's order and allowed the appellant to file a delay condonation application within six weeks, with the expectation of an expeditious decision on the matter.