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2023 (7) TMI 1023 - HC - Service TaxCondonation of delay in filing appeal before Commissioner (Appeals) - requirement to file appeal within a maximum period of three months in terms of Section 85 of the Finance Act, 1994 - HELD THAT:- Upon perusal of the record, it is seen that the order passed by the authorities dated 26.09.2019 was served upon one Shivpal Singh as indicated by the petitioner and was delivered on 07.10.2019 through Speed Post. The petitioner has admitted in his application filed under the Right to Information Act that he has received a letter from the Range Superintendent, Sehore on 04.12.2020 wherein he was asked to pay service tax along with interest in compliance of the impugned order. This would indicate that the petitioner was having the knowledge of passing of the impugned order on 04.12.2020. In terms of Section 85 of the Finance Act, 1994, the appeals are required to be presented within two months from the date of receipt of the decision or the order passed by adjudicating authority, provided that the Commissioner of Central Excise (Appeals) is having power to condone the delay, if he is satisfied by the reasons assigned. But, the same can only be done if the appeal is filed within a further period of one month. Thus, the Commissioner (Appeals) can only condone the delay beyond the period of prescribed limitation to the extent of one month. In the present case, the appeal has been filed on 01.06.2021 i.e. after the delay of one and a half years from the date of passing of the impugned order. The Hon'ble Supreme Court in the case of SINGH ENTERPRISES VERSUS COMMISSIONER OF C. EX., JAMSHEDPUR [2007 (12) TMI 11 - SUPREME COURT] has clarified the aforesaid position with respect to the period of limitation and has categorically held that there is complete exclusion of Section 5 of the Limitation Act. The Commissioner and the High Court were therefore justified in holding that there was no power to condone the delay after the expiry of 30 days' period. In the light of the aforesaid decision, it is clear that the Commissioner (Appeals) can only condone the delay in filing an appeal if the same is barred by one month and the Commissioner is not having any power to condone the delay in filing the appeal after expiry of 30 days period. In view of the judgment passed by the Hon'ble Supreme Court in the case of Singh Enterprises as well as Section 85 of the Finance Act, 1994, it is apparently clear that the Commissioner (Appeals) was not having any power to condone the delay which was huge in terms of the Finance Act, 1994 practically of one and a half years from the date of passing of the order. Under these circumstances, no illegality is committed by the appellate authority in dismissing the appeal on the ground of limitation. Petition dismissed.
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