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Judgment
This appeal seeks to assail the order dated August 29, 2016 passed by the Commissioner, Service Tax (Appeals-II), Delhi, the Commissioner (Appeals), by which the appeal filed by the appellant before the Commissioner (Appeals) on April 08, 2016 to assail the order dated May 28, 2014 passed by the Additional Commissioner, Service Tax, confirming the demand with penalty and interest, has been dismissed for the reason that it was filed beyond the statutory time limit of two months prescribed for filing the appeal and in fact, was filed had even beyond the further period of one month contemplated in section 85 of the Finance Act 1994, the Finance Act.
The case was called out but learned counsel for the appellant has not appeared to press the appeal. A perusal of the order sheet indicates that learned counsel for the appellant has not been appearing since 2019. This would be clear from the following orders passed by the Tribunal:
“Dated: 19.06.2019
None appeared for the appellant. Perusal shows that notice has been received by the appellant on 22 May, 2019. However, in the interest of justice, one opportunity is granted for marking appearance. Matter is adjourned to 27 August, 2019 awaiting presence of the appellant.”
xxxx xxxx xxxx
Dated: 30.10.2019
“None for the appellant. Matter is adjourned to 24.12.2019”
Xxxx xxxx xxxx
Dated: 24.12.2019
“None present for Appellant. The matter is adjourned to 18 February, 2020.”
xxxx xxxx xxxx
Dated: 18.02.2020
“None is present for the appellant. In the interest of justice matter is adjourned to 9th April, 2020 for awaiting presence and further proceeding.”
When the matter was last listed on November 16, 2021, learned counsel for the appellant did not appear and the matter could also not be taken up. It was, therefore, directed to be listed on January 25, 2022.
In such circumstances, we have proceeded to decide the matter after hearing Dr. Radhe Tallo, learned Authorized Representative appearing for the Department.
The records indicate that the appellant had filed the appeal before the Commissioner (Appeals) only on April 08, 2016 to assail the order dated May 28, 2014. The Commissioner (Appeals) gave adequate opportunity to the appellant to substantiate that it was only on February 10, 2016 that the appellant had received the order since only bald a statement was made by the appellant that the order was received on February 10, 2016. This is clear from the letter dated August 10, 2016 sent to the appellant by the Commissioner (Appeals). The Commissioner (Appeals) noticed that the appellant failed to submit any evidence/ reason that he had received the order only on August 10, 2016, which was after a lapse of approximately one year and nine months.
The issue, therefore, that arises for consideration is as to whether the Commissioner (Appeals) was justified in dismissing the appeal for the reason that it was filed beyond the statutory period of two months provided in the Statute with a further provision that a further delay of one month could be condoned by the Commissioner (Appeals) provided, he was satisfied that the appellant was prevented by sufficient cause from preferring the appeal within the stipulated time.
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. The discretion of the Commissioner to condone the delay is therefore, circumscribed by the condition set out in proviso and the delay can be condoned only if the appeal is presented within a further period of one month after the expiry of the statutory period of two months, provided of course, he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within a period of two months.
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 vs. Commissioner of Central Excise, Jamshedpur, 2008 (221) E.L.T. 163 (S.C). 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 Supreme Court 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. In other words, the appellate authority can entertain the appeal by condoning the delay only upto 30 days beyond the normal period for preferring the appeal, which is 60 days.
The Commissioner (Appeals) was, therefore, justified in dismissing the appeal on the ground of limitation.
There is, therefore, no error in the order passed by the Commissioner (Appeals). The appeal is, accordingly, dismissed.