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2021 (9) TMI 755 - AT - Service TaxMaintainability of appeal - order passed by the Additional Commissioner has been dismissed for the reason that it was filed beyond the period of limitation - power of Commissioner (Appeals) to condone the delay - section 85(3) of the Finance Act - HELD THAT:- The Supreme Court in SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] examined the provisions of section 35 of the Central Excise Act, 1944, which are pari materia to the provisions of section 85 of the Finance Act, and observed that the delay can be condoned in accordance with the language of the Statute which confers power on the Appellate Authority to entertain the appeal by condoning the delay only upto 30 days after expiry of 60 days, which is the normal period for preferring the appeal. It is for this reason that the Supreme Court observed that the Commissioner and the High Court were justified in holding that there was no power to condone the delay after the expiry of the further period of 30 days. Reliance by the learned Authorized Representative appearing for the Department on the decision of the Supreme Court in Singh Enterprises is misplaced. It is no doubt true that the Supreme Court held that an appeal has to be filed within the period prescribed in the Act and the provisions of section 5 of the Limitation Act cannot be availed of, but the period of three months has to commence from the date a copy of the order is actually served upon the appellant and in the instant case the order was actually served upon the appellant only on July 05, 2011 - the appeal presented by the appellant on August 05, 2011 was within the initial period of three months prescribed in sub-section (3) of the section 85 of the Finance Act. The order dated November 26, 2015 passed by the Commissioner (Appeals), therefore, cannot be sustained and is set aside - Appeal allowed.
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