2023 (6) TMI 645 - AT - Service Tax

Maintainability of appeal - appeal filed beyond the period prescribed under section 85(3A) of the Finance Act 1994 - statutory requirement of pre-deposit was not satisfied. Delay in filing appeal - HELD THAT - In the present case it is clear from the order passed by the Commissioner (Appeals) that the order dated March 28 2017 passed by the Additional Commissioner was received by the appellant on April 03 2017. This finding has been recorded by the Commissioner (Appeals) on the basis of the statement made by the appellant in the Service Tax Form-IV enclosed with the memo of appeal. The appeal could have been filed by June 02 2017 and only one month further delay could have been condoned by the Commissioner (Appeals) provided a satisfactory explanation was offered by the appellant for this period of one month. The appeal was filed on January 16 2018 with a delay of about 278 days - Such being the position it is not possible to accept the contention of learned counsel for the appellant that the provisions of section 5 of the Limitation Act should be invoked even if the delay is beyond the extended period of thirty days or that the Tribunal has a discretionary power to condone any delay in filing the appeal even after the expiry of the extended period of 30 days. Requirement of pre-deposit should have been waived by the Commissioner (Appeals) - HELD THAT - The Supreme Court in NARAYAN CHANDRA GHOSH VERSUS UCO BANK 2011 (3) TMI 1478 - SUPREME COURT examined the provisions contained in section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 relating to pre-deposit in order to avail the remedy of appeal. The provisions are similar to the provisions of the Finance Act. The Supreme Court emphasised that when a Statue confers a right to appeal conditions can be imposed for exercising of such a right and unless the condition precedent for filing appeal is fulfilled the appeal cannot be entertained. The Supreme Court therefore held that deposit under the second proviso to section 18(1) of the Act being a condition precedent for preferring an appeal the Appellate Tribunal erred in law in entertaining the appeal. The Supreme Court also held that the Appellate Tribunal could not have granted waiver of pre-deposit beyond the provisions of the Act. The Commissioner (Appeals) therefore committed no illegality in dismissing the appeal - Appeal dismissed.

Summary

Issues Involved:
The appeal dismissal based on delay in filing and non-satisfaction of pre-deposit requirement.

Issue 1: Delay in Filing Appeal
The Estate Officer was aggrieved by the dismissal of the appeal due to delay beyond the prescribed period under section 85(3A) of the Finance Act, 1994. The appellant offered an explanation for the delay, but the Commissioner (Appeals) dismissed the appeal citing lack of power to condone the delay beyond three months. The provision allows for an initial period of two months for appeal filing, extendable by one month if sufficient cause is shown. The discretion to condone the delay is limited by the condition set out in the proviso, allowing for an additional one-month period if justified.

Issue 2: Pre-Deposit Requirement
The second contention was regarding the requirement of pre-deposit, which the appellant argued should have been waived. The Supreme Court precedent in Narayan Chandra Ghosh emphasized that when a statute confers a right to appeal, conditions can be imposed for exercising that right. The Court held that the deposit under the relevant provision is a condition precedent for filing an appeal, and the appellate authority cannot grant waiver beyond the statutory provisions. The principles laid down in this decision were reiterated in subsequent cases, affirming the mandatory nature of the pre-deposit requirement for availing the remedy of appeal.

In conclusion, the Commissioner (Appeals) was justified in dismissing the appeal based on the delay in filing and the non-fulfillment of the pre-deposit condition. The appeal was dismissed accordingly, following the legal principles established by the Supreme Court in similar cases.