2022 (2) TMI 93 - AT - Service Tax

Tribunal Upholds Dismissal of Appeal Over Time Limit Violation

M/s. Millenium Build-Con NRI City Versus Commissioner of Service Tax

The Tribunal upheld the dismissal of an appeal challenging a demand with penalty and interest by the Commissioner (Appeals-II), Delhi, due to being filed ... Condonation of delay in filing appeal before commissioner (appeals) - appeal dismissed for the reason that it was filed beyond the statutory time limit - section 85 of the Finance Act 1994 - HELD THAT:- In the present case, the appeal was filed not only beyond the statutory limit of two months but even beyond the permissible period of one month. A perusal of sub-section (3A) of Section 85 clearly indicates that an appeal shall be presented within two months from the date of receipt of the order of the adjudicating authority in relation to Service Tax, interest or penalty. It further provides that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month - Section 35 of the Central Excise Act, 1944 provides that any person aggrieved by any decision or order passed under the Act, may appeal to the Commissioner (Appeals) within sixty days from the date 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 presented within a further period of thirty days. The provisions of Section 35 of the Central Excise Act, 1944 are pari materia with Section 85(3A) of the Finance Act. The provision of Section 35 of the Central Excise Act, 1944 relating to appeals before Commissioner (Appeals) had come up for consideration before the Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] where it was held that the period upto which the prayer for condonation can be accepted is limited by the proviso to sub-section (1) of Section 35 of the Act and the position is crystal clear that the appellate authority has no power to allow the appeal to be presented beyond the period of thirty days after the expiry period of sixty days. The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ground of limitation - appeal dismissed. Issues:1. Appeal filed beyond statutory time limit.2. Justification of dismissal of appeal by Commissioner (Appeals).3. Consideration of limitation under Section 85 of the Finance Act.4. Comparison with provisions of Section 35 of the Central Excise Act, 1944.5. Dismissal of appeal upheld.The judgment concerns an appeal challenging an order passed by the Commissioner, Service Tax (Appeals-II), Delhi, confirming a demand with penalty and interest. The appeal was dismissed by the Commissioner (Appeals) due to being filed beyond the statutory time limit of two months, with an additional one-month period under section 85 of the Finance Act 1994. The appellant failed to provide sufficient evidence to justify the delay in filing the appeal, leading to its dismissal.The key issue raised was whether the Commissioner (Appeals) was justified in dismissing the appeal for exceeding the statutory time limit. The appellant had not only missed the two-month limit but also the additional one-month period allowed for sufficient cause. The provision under Section 85(3A) of the Finance Act outlines the time frame for filing appeals and the discretion of the Commissioner to condone delays based on sufficient cause.The judgment referred to a similar provision under Section 35 of the Central Excise Act, 1944, which allows a limited extension for filing appeals. Citing the Supreme Court case of Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur, the judgment highlighted that the appellate authority can only condone delays up to 30 days beyond the normal filing period. This comparison supported the decision of the Commissioner (Appeals) to dismiss the appeal based on the limitation issue.Ultimately, the Tribunal found no error in the order passed by the Commissioner (Appeals) and upheld the dismissal of the appeal. The judgment emphasizes the importance of adhering to statutory time limits for filing appeals and the limited scope for condonation of delays as provided by the relevant legal provisions.This detailed analysis of the judgment provides a comprehensive overview of the issues raised, the legal considerations applied, and the final decision reached by the Tribunal in relation to the appeal concerning the limitation period for filing appeals under the relevant statutory provisions.