Albert and Company Pvt. Ltd. vs Commissioner of Service Tax

Heard the learned counsel appearing for the appellant, as well as the learned counsel appearing on behalf of the respondents.

This civil miscellaneous appeal has been filed against the final order passed by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench, Chennai, dated April 11, 2013, in Appeal No. ST/MISC/744/12, ST/S/555/12 and ST 671/121. In the present civil miscellaneous appeal, the following substantial questions of law have been raised for the consideration of this court:

"(1). Whether the Appellate Tribunal is right in upholding the order of the Commissioner (Appeals) dated August 7, 2012, dismissing the appeal as time-barred ?

(2). Whether the Appellate Tribunal ought to have entertained the appeal and set aside the order of the Commissioner (Appeals) in the interest of justice to offer opportunity to the appellant to defend itself?"

The learned counsel appearing on behalf of the appellant had submitted that the order of the Appellate Tribunal, dated April 11, 20132, is erroneous and unsustainable in the eye of law. The Appellate Tribunal ought to have seen that it is a case of ex parte adjudication, by the second respondent. It has been further stated that the first respondent ought to have condoned the delay in the filing of the appeal and the appeal should have been heard and decided, on merits and in accordance with law. As the order under challenge had been passed contrary to the principles of natural justice, the Appellate Tribunal ought to have condoned the delay in the filing of the appeal, instead of dismissing the same, as barred by limitation.

Per contra the learned counsel appearing on behalf of the respondents had submitted that it is a well-settled position in law that the period of limitation prescribed for the hearing of the appeal, by the Appellate Tribunal, under section 85(3) of the Finance Act, 1994, cannot be extended. The learned counsel had relied on the following decisions in support of his contentions:

(1). Singh Enterprises Vs. Commissioner of Central Excise, Jamshedpur and Others, .

(2). JMJ Constructions Vs. Assistant Commissioner of Central Excise, Salem and Others, .

(3). Earbis Engineering Co. Ltd. v. Deputy Commissioner of Sales Tax, Ballygunge Charge [2012] 56 VST 258 (WBTT).

(4). M/s. Gopinath and Sharma Vs. Customs, Excise and Service Tax Appellate Tribunal, Chennai, The Commissioner of Central Excise (Appeals), Chennai, The Commissioner of Service Tax, Chennai and The Additional Commissioner, Chennai, .

(5). Gopinath & Sharma v. CESTAT [2013] 32 STR J78 (SC).

In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, and on considering the decisions cited supra, we are of the view that the relief prayed for, by the appellant, in the present appeal, cannot be granted. In view of the decisions cited supra, it is clear that the Appellate Tribunal does not have the power or the authority to extend the period of limitation prescribed by the statute, for entertaining the appeal. Therefore, the contentions raised on behalf of the appellant, in the present appeal, cannot be accepted. As such, the present civil miscellaneous appeal is liable to fail. In such circumstances, we find it appropriate to dismiss the present appeal and accordingly it is dismissed. No costs.

1 Order of the Customs, Excise and Service Tax Appellate Tribunal (P.K. DAS, (Judicial Member) and MATHEW JOHN, (TECHNICAL MEMBER)) in S. ALBERT & Co. PVT. LTD. V. COMMISSIONER OF CENTRAL EXCISE (Appeal Nos. ST/MISC/744/12, ST/S/555/12 and ST/671/12 decided on April 11, 2013) (printed infra) affirmed. The order of the Tribunal is printed below:

ORDER

P.K. DAS (Judicial Member).--The application for change of cause title filed by the appellant is allowed and the respondent''s name in the cause title shall be read as Commissioner of Service Tax, Chennai, instead of Commissioner of Central Excise, Chennai. Misc. application is allowed.

After hearing both sides and on perusal of the records, we find that the issue involved is in a narrow compass and therefore after disposing the stay application, the appeal is taken up for hearing.

It is seen from the order of the Commissioner (Appeals) that date of issue of order-in-original is September 29, 2011 whereas the appeal has been filed on August 7, 2012 before the Commissioner (Appeals), i.e., almost nine months after the issue of the order. Accordingly, the Commissioner (Appeals) dismissed the appeal as time-barred. We find that it is settled legal position that the Commissioner (Appeals) has no power to condone the delay beyond the statutory limit. In view of that, we do not find any reason to interfere with the order passed by the Commissioner (Appeals) and same is upheld. Accordingly, the appeal is dismissed. Stay petition is disposed of."

Printed at page 514 supra.