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TMI Blog2011 (9) TMI 700X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellate Authority, which has dismissed the appeal preferred by the State against the order of the Adjudicating Authority. 2. The assesses, the Director, Department of Mines and Geology is a holder of Service Tax Registration under the category of "Technical Inspection and Certificate Services" as defined under Section 65 (108) of the Finance Act, 1994 (for short hereinafter referred to as the Act). The assessee received an amount of Rs. 49,45,369/-towards fees, for "Technical Inspection and Certificate Services" for the period from July 2003 to March 2006. The assessee failed to pay/remit the service tax along with the education cess leviable thereon amounting to Rs. 4,51,901/- to the Government Treasury. A show cause notice was issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... condonation of delay shows the sufficient cause for the delay, the Appellate Authority committed a serious error in holding that the delay cannot be condoned as it is filed beyond the period prescribed under the law and accordingly, dismissed the appeal. The Tribunal has not properly appreciated the relevant provision and committed a serious error in upholding the order of the Appellate Authority, Hence, interference is called for. In support of his contention he relies on the judgment of this Court in the case of Praxair India (P.) Ltd. v. CCE ST [CEA No. 115 of 2010, dated 5-1-2011] where delay of 229 days in preferring the first appeal was condoned. There was a delay of 229 days in: preferring the original appeal before the CESTAT and co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty : Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement. (5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under, this section, the Commissioner of, Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944." 6. A perusal of the aforesaid provision makes it clear that a right of appeal is created in favour of an assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed for preferring such appeal, whereas in Section 86 no provision is made for condoning the delay. In the absence of any express, provision for condoning the delay in Section 86, Section 5 of the Limitation Act is attracted. Therefore, Under the scheme of the Act when specific period of limitation is provided under the Act and also for condoning the delay, the discretion, which is vested in the Appellate Commissioner, has to be exercised within the four corners of the law. In other words, if there is a delay in preferring the first appeal under Section 85 and if the delay is upto the extent of three months, then the Appellate Commissioner is vested with the power to condone the delay if the cause shown is sufficient cause. In other ..... X X X X Extracts X X X X X X X X Extracts X X X X
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