2017 (2) TMI 263 - AT - Service Tax

Tribunal Remands Appeal for Fresh Adjudication Emphasizing Correct Limitation Calculation

The Tribunal allowed the appeal, remanding the matter to the Commissioner (Appeals) for fresh adjudication. The decision emphasized the correct ... Condonation of delay - whether this appeal can be entertained or it is time barred as per the provisions of Section 86 (3A) of the Act? - rectification of mistake invoking Sec 74 of the FA - Held that: - The application of Section 74 was rejected by the Additional Commissioner and the said rejection letter was received by the appellant on 11/05/2015. In these circumstances, the order of Additional Commissioner became final only on 11/05/2015 and the period of limitation needs to be counted from that date. The impugned order has counted the period from 07/03/2015 when the order-in-original was received by the appellant, the same needs to be re-calculated from 11/05/2015 when the order u/s 74 was received by the appellant - appeal allowed by way of remand. Issues:Appeal against order of Commissioner (Appeals) rejected on the ground of limitation under Section 85 (3A).Analysis:The appellant, M/s. Omkar Engineers, appealed against the rejection of their appeal by the Commissioner (Appeals) based on the limitation under Section 85 (3A). The appeal was rejected solely on the ground of limitation, as the appellant filed the appeal after the prescribed time limit. The order-in-original was received on 07/03/2015, and the appeal was required to be presented within two months from that date, i.e., by 07/05/2015. The appellant filed the appeal on 09/07/2015, which was beyond the extended period allowed under the proviso to Section 85 (3A). The Commissioner (Appeals) held that they did not have the authority to condone the delay beyond the prescribed period, citing a Supreme Court decision that supported this stance.The learned Authorized Representative (AR) relied on the impugned order, supporting the decision of the Commissioner (Appeals) to reject the appeal based on the limitation issue. However, upon examination of the documents on record, it was found that the appellant had approached the Additional Commissioner for rectification of a mistake in the order-in-original under Section 74 of the Finance Act. The rejection of the application under Section 74 was received by the appellant on 11/05/2015, making the order final from that date. Therefore, the period of limitation should have been counted from 11/05/2015, not from the date the original order was received. Consequently, the impugned order was set aside, and the matter was remanded to the Commissioner (Appeals) for fresh adjudication based on the corrected timeline. The appeal was allowed by way of remand.In conclusion, the Tribunal found that the limitation issue was incorrectly calculated, and the appeal was remanded for fresh adjudication based on the correct timeline from the date the rejection under Section 74 was received. The decision highlighted the importance of adhering to statutory timelines and the authority of the Commissioner (Appeals) to condone delays within the specified limits as per the law.