2024 (1) TMI 39 - AT - Service Tax

Commissioner lacks power to condone appeal delays beyond three months under Section 85(3) Finance Act 1994

M/s. LGW Ltd. Versus Commr. of Service Tax & Central Excise, Kolkata

The CESTAT Kolkata dismissed appeals filed with delays of 43, 40, and 37 months before the Commissioner (Appeals). The Tribunal held that Section 85(3) of ... Condonation of delay of more than 43 months, 40 months and 37 months in filing appeal - time limitation - power of Commissioner (Appeals) to condone delay - HELD THAT:- The Section 85 (3) and Section 86 clearly bring out the Legislative intent of allowing restricted power to the Commissioner (Appeals) and unrestricted power to the Tribunal. Further the amendment carried out to Section 85 by way of 85(3A), vide the Finance Bill 2012 wherein the power to condone has been reduced from 3 months to 1 month, once again shows that it is a considered, deliberated, specific intent of the Legislature to prescribe the specific time limit to condone the delay by the Commissioner (Appeals). Coming to the facts of the present Appeals, there is absolutely no dispute and also clearly admitted by the Appellant that they have filed the Appeals before the Commissioner (Appeals), after more than 43 months, 40 months and 37 months, way beyond the condonable period of Three Months by the Commissioner (Appeals) as prescribed under Section 85 (3) - when admittedly the Appeals have been filed beyond 3 months + 3 months, we do not find that any infirmity has crept in, in the OIAs passed by the Commissioner (Appeals). We hold that he was correct in dismissing the Appeals on this count. Whether the Tribunal is empowered to go into the condonation power of the Commissioner (Appeals) and can it direct him to condone the same by way of any power vested in the Tribunal? - HELD THAT:- Under this Section 35, the Appeal is required to be filed within 60 days and condonation can be granted if it is filed within the next 30 days. This Section 35 of CEA 1944, which is applicable for Central Excise cases, is para materia with Section 85 of the Finance Act 1994, which is applicable for Service Tax cases. While the condonable period was 30 days in case of Central Excise Appeals, the same is for Three (3) months for the Service Tax matters during the period under dispute - The Hon’ble Apex Court has unequivocally held that once the condonable period of 30 days is exceeded, the Commissioner (Appeals) has no power to condone the same. It has also gone on to hold that even Section 5 of the Limitation Act, is fully excluded since the statute itself prescribes the specific period upto which the condonation can be granted. It further holds that, even Supreme Court cannot be vested with the power to condone this delay before the Commissioner (Appeals), since any such action would render the specific provision otiose. There is no power vested with this Tribunal to set aside the Appeals already dismissed by the Commissioner (Appeals), particularly when there are no infirmity in his doing so after finding that the Appeals were filed with a delay of 43 months, 40 months and 37 months respectively. In the present case, when the explanation for the COD was not found to be acceptable and the Appeals were dismissed both by the Tribunal and the Single Judge of the High Court, the appellant weaved a set of lie, by taking the example of another Final Order of this Tribunal, wherein the dismissal of the Appeal by the Commissioner (Appeals) was on a totally different ground. They concealed the fact that in the case of the present Appeals they were dismissed initially by the Commissioner (Appeals) in terms of Section 85 (3). With such concealment and lies, they were able to get a reprieve from the Hon’ble High Court time and again, for the delay of over 5 years before the Tribunal in the present Appeals. Appeal dismissed. Issues Involved:1. Preliminary objection on time-bar for filing appeals.2. Merits of the case regarding refund claims.3. Statutory provisions governing appeal filing.4. Power to condone delay by Commissioner (Appeals) and Tribunal.Summary of Judgment:1. Preliminary Objection on Time-Bar:The Revenue's representative objected that the appellant's appeals were dismissed by the Commissioner (Appeals) for being filed beyond the condonable period under Section 85 of the Finance Act, 1994. The Tribunal must address the time-bar issue before considering the merits. The Supreme Court's judgment in Singh Enterprises Vs CCE Jamshedpur affirmed this stance, making it binding on all authorities.2. Merits of the Case Regarding Refund Claims:The appellant argued that the Tribunal failed to follow the Calcutta High Court's directions to consider the merits of the case. They cited a previous favorable order by the Tribunal in a similar refund claim case, which was remanded for fresh consideration and resulted in a refund. The appellant requested the present appeals be decided on similar merits.3. Statutory Provisions Governing Appeal Filing:The Tribunal examined the statutory provisions under Section 85 of the Finance Act, 1994, which prescribes a three-month period for filing appeals before the Commissioner (Appeals), extendable by another three months if sufficient cause is shown. The appeals in question were filed with delays of 43, 40, and 37 months, far exceeding the permissible period.4. Power to Condon Delay by Commissioner (Appeals) and Tribunal:The Tribunal noted that while it has unrestricted power to condone delays, the Commissioner (Appeals) is limited to a maximum of three months. The Commissioner (Appeals) dismissed the appeals for being filed beyond this period, without considering the merits. The Tribunal, referencing Supreme Court judgments, affirmed that neither it nor any higher court has the power to condone delays beyond the statutory limit set for the Commissioner (Appeals).Conclusion:The Tribunal upheld the Commissioner (Appeals)'s decision to dismiss the appeals on the ground of time-bar, finding no infirmity in the orders. It emphasized that the legislative intent restricts the condonation power of the Commissioner (Appeals) and that the Tribunal cannot override this statutory limit. Consequently, the appeals were dismissed.