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2017 (10) TMI 447 - AT - Service TaxCondonation of delay in filing appeal - delay of one day in filing the appeals - whether the appeals filed by the appellant before the first appellate authority is hit by limitation or otherwise? - Held that: - As per the provisions of Section 85(3) of the Finance, 1994, an assessee is required to file an appeal against Order-in-Original with the first appellate authority within two months from the date of communication of the said Order-in-Original; can file an appeal before the adjudicating authority with an application for condonation of delay within 30 days on expiry of two months statutory period granted to them. As per the provisions of Section 85(3) of the Finance Act, 1994, the limitation for filing the appeal is within two months starts from 3rd March 2016 and ends on 2.5.2016. Further, condonable period of 30 days is granted to filing the appeal with an application for condonation of delay, which according to the Revenue starts on 3.5.2016, while it is the case of the appellant that the first day i.e., 3.5.2016 has to be excluded and the period of one month for filing an appeal with application for condonation of delay starts from 4.5.2016 and they have filed appeal on 3.6.2016 which is the last day for filing the appeal. Following the ratio of the Tribunal's decision in the case of Kouni Travels Pvt. Ltd. [2009 (9) TMI 208 - CESTAT, BANGALORE], where it was held that the time limit for condoning the delay is to be construed by excluding the first day of the period of 30 days within which the first appellate authority can condone the delay - there is no delay in filing the appeal before the first appellate authority - matter back to the first appellate authority with a direction to restore the appeal to its original number - appeal restored.
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