2023 (6) TMI 645 - CESTAT NEW DELHI

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.