2023 (5) TMI 1447 - AT - Service Tax

Appeal Dismissed for Delay Beyond Statutory Limit Under Section 85(3A) of Finance Act, 1944

The CESTAT Mumbai dismissed the appeal due to delay in filing beyond the prescribed statutory period under Section 85(3A) of the Finance Act, 1944. The ... Condonation of delay in filing appeal - sufficient reasons for delay or not - appeal dismissed on the ground that the same was filed beyond the prescribed time limit provided under the statute - traveeling beyond the jurisdiction conferred for condoning the delay in filing the appeal - HELD THAT:- In this case, the facts are not under dispute that the adjudication order passed by the original authority was communicated to the appellant on 30.11.2019 and thereafter, the appeal along with delay condonation application was filed by the appellant in the office of the Commissioner (Appeals) on 17.03.2020. The provisions for filing of service tax appeal before the Commissioner (Appeals) are governed in Section 85 of the Finance Act, 1944. Sub-section (3A) contained therein prescribe the time line for filing of appeal and the power for condoning delay by the First Appellate Authority. In the case in hand, since the adjudication order was received by the appellant on 30.11.2019 as declared in the ‘Form ST-4’ by them, the appeal was required to be filed within the normal time period of two months i.e. on or before 29.01.2020. Even considering the power conferred under the proviso to sub-section (3A) of Section 85 ibid for condoning the delay up to a further period of one month by the Commissioner (Appeals), the present appeal still was required to be filed on or before 29.02.2020. However, in this case, admittedly, the appeal was filed on 17.03.2020, which was beyond the normal, including the extended period for consideration of delay by the competent authority. Where the special statute i.e., Finance Act, 1994 (governing the field of service tax) does not prescribe any limitation period for carrying out any activity, then recourse can be made to the general law, for consideration of the limitation aspect, as prescribed thereunder. However, when the special statute itself has prescribed the time limit, within which a specific act has to be performed, then such time limit must be adhered to and the authorities functioning under such special Act are bound by the provision of such Act. There are no merits in the appeal filed by the appellants and accordingly, the same are dismissed. ISSUES: Whether the First Appellate Authority (Commissioner of Central Excise (Appeals)) has jurisdiction to condone delay in filing an appeal beyond the prescribed statutory period under Section 85(3A) of the Finance Act, 1944.Whether the provisions of the Limitation Act, 1963 apply to condonation of delay in appeals filed under the Finance Act, 1944 or similar indirect tax statutes.Whether the appellate tribunal has jurisdiction to entertain appeals filed beyond the condonable period prescribed by the special statute. RULINGS / HOLDINGS: The Commissioner (Appeals) has no jurisdiction to condone delay beyond the maximum period of three months from the date of receipt of the adjudication order, as prescribed under Section 85(3A) of the Finance Act, 1944, which allows two months for filing plus one month for condonation of delay. Appeals filed beyond this period are not maintainable.Section 5 of the Limitation Act, 1963 does not apply to appeals under the Finance Act, 1944 because the statute contains a specific limitation provision, thereby excluding the general limitation law.The appellate tribunal and Commissioner (Appeals) are 'creatures of Statute' and are vested with jurisdiction to condone delay only 'up to the period statutorily provided,' and cannot extend condonation beyond that period. RATIONALE: The Court relied on the statutory provision contained in Section 85(3A) of the Finance Act, 1944, which prescribes a two-month period for filing appeals and a further one-month period for condonation of delay by the Commissioner (Appeals), making the total condonable period three months.The Court referred to binding Supreme Court precedent holding that where a special statute prescribes a limitation period for filing appeals, that period must be strictly adhered to, and the Limitation Act's general provisions do not apply.The Court cited the Supreme Court's decision that the appellate authority's power to condone delay is limited to the period explicitly provided by the statute, excluding any power to condone delay beyond that period, thus excluding the application of Section 5 of the Limitation Act.The Court acknowledged conflicting views in coordinate benches but reaffirmed adherence to the Supreme Court's binding rulings, rejecting reliance on judgments that allowed condonation beyond the statutory limit.