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TMI Blog2024 (6) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Learned Commissioner in the above finding. The dismissal of the appeal on being time bar is proper and legal and does not suffer from any infirmity - Appeal dismissed. - HON'BLE MEMBER ( JUDICIAL ) , MR. RAMESH NAIR And HON'BLE MEMBER ( TECHNICAL ) , MR. C L MAHAR Ms Neeta Ladha , Chartered Accountant for the Appellant Shri Rajesh K Agarwal , Superintendent ( AR ) for the Respondent ORDER RAMESH NAIR In the present case the issue involved is that whether the various miscellaneous expenses paid by the service recipient in connection with security service provided by the appellant is liable to Service Tax or otherwise. 2. Ms. Neeta Ladha, Learned Chartered Accountant appearing on behalf of the appellant submits her written submission dated 3rd January, 2024 which is taken on record. She also vehemently argued on the merit of the case. 3. On the other hand, Shri Rajesh K Agarwal Learned Superintendent (AR) appearing on behalf of the Revenue pointed out that by impugned order, the appeal before the Commissioner (Appeals) was dismissed only on time bar. As the appeal was filed before the Commissioner (Appeals) after 90 days from the date of communication of the order-in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of the communication to him of such decision or order: Provided 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 sixty days, allow it to be p presented ted within a further period of thirty days. (1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal. (2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner. 4.2 The aforesaid provision shows that any person aggrieved by the decision or the order of the Central Excise Officer may appeal to the Commissioner of Central Excise (Appeals) within a period of 60 days and it is further provided that the Commissioner (Appeals) if is satisfied that the appellant was prevented by sufficient cause, he may allow the appeal to be presented within further period of 30 days. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o condone the delay beyond the permissible period provided under the Statute. The period upto which the prayer for condonation can be accepted is statutorily provided. It was submitted that the logic of Section 5 of the Indian Limitation Act, 1963 (in short the 'Limitation Act') can be availed for condonation of delay. The first proviso to Section 35 makes the position clear that the appeal has to be preferred within three months from the date of communication to him of the decision or order. However, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of 60 days, he can allow it to be presented within a further period of 30 days. In other words, this clearly shows that the appeal has to be filed within 60 days but in terms of the proviso further 30 days time can be granted by the appellate authority to entertain the appeal. The proviso to sub-section (1) of Section 35 makes the position crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of 30 days. The language used makes the position clear that the legislature intended the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis supplied ) 10 However, the Division Bench, while considering the extraordinary cases where an asessee may not be in a position to challenge the order of the adjudicating authority, planning the delay and the gross injustice done by the adjudicating authority, it was served by the Division Bench at paragraph 19, as under : 19. As regards the contention that there may be extra-ordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extra-ordinary cases where an assessee can show extra-ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this Court. Hence, in cases where the assessees have suffered gross injustice and they could not file appeals before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order-in-original on account of circumstances beyond their control, such assessees can invoke the powers of this Court under Article 226 of the Constituti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I find that all the aforesaid Appellants have filed appeal after the period of sixty and therefore the instant appeals are taken for disposal without merits of the each appeals. 16 I view of the above, Hon'ble Tribunal, High Court and Apex Court decision, the power to condone the delay conferred on the Commissioner (Appeals) is only for a period of 30 days after expiry of the limitation period of 60 days. The Appellate authority having no power to allow appeal presented beyond the said 30 days. Therefore, the aforesaid appeals are beyond of the power of Appellate Authority l.e. Commissioner (Appeals). 5. Further, the Apex Court in case of UNION OF INDIA Versus KAMLAKSHI FINANCE CORPORATION LTD. reported in 1991 (55) ELT 433 SC has held that, Department is directed to pay utmost regard to judicial discipline and give effect to orders of higher appellate authorities which are binding on them . In view of the clear directive of Hon'ble Apex Court being a quasi-judicial authority subject to the discipline jurisdiction of Hon'ble Gujarat High Court, I am duty bound in law to follow the decision taken by any higher appellate forum, in this case the Hon'ble High Court of G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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