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2019 (12) TMI 119 - AT - Service TaxCondonation of delay of one year in filing appeal - power of Commissioner (Appeals) to condone delay - Short payment of service tax - restaurant service - Department observed that despite providing the taxable service the appellant is not registered with the department nor is paying the service tax - period from May 2011 to September, 2015 - HELD THAT:- As mentioned under Section 85(3A) of Finance Act, 1994, Commissioner (Appeals) has clearly recorded that he had the power to condone delay only coupled to the extent of 30 days beyond 60 days from the date of the order to be challenged and since the impugned appeal was much beyond 30 days/one month, it being filed after a delay of one year, the Commissioner (Appeals) had dismissed the appeal being barred by the period of limitation. The statute itself provide a specific period during for which the Commissioner (Appeals) can exercise the discretion to condone the delay that to on being satisfied that a sufficient cause has been show for not presenting the appeal in the appropriate time. From the order under challenge, it is apparent that there was no reason for delay was mentioned in the appeal. From the record of present appeal, there is apparent a letter written by the appellant to Commissioner (Appeals) on 30 May, 2018 praying for treating the said letter as a mercy petition - The only reason mentioned in the said application is that he demanded the copy of order dated 13.2.2017 from Assistant Commissioner, Ajmer vide his application dated 1.2.2018. From the Order-in-Original it is clear that the appellant was heard and the order is not ex-party. Accordingly, there is no reason apparent as to why the appellant took one year time to seek the copy of the order. Above all, Section 85(3A) of Finance Act makes it clear that Commissioner is not empowered to condone any delay in filing appeal in excess of limitation period prescribed under the said Section. There is no infirmity in the order under challenge. Commissioner (Appeals), rather in the given circumstances had no option to dismiss the appeal on the ground of limitation - the present appeal stands dismissed not only for want of the prosecution on part of the appellant but also for the reason that the appeal has no merits to sustain - Appeal dismissed.
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