TMI Blog2012 (9) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... her three months under the proviso to sub-section 3(3) of section 85 of Finance Act, 1994. Accordingly, any appeal coming to his record beyond prescribed period of limitation fails to be maintainable being barred by limitation. Therefore, Commissioner (Appeals) was right to confine his jurisdiction to section 85(3) of the Finance Act, 1994 to dismiss the appeal of the appellant. Tribunal has no power to drag Revenue to litigation reviving a litigation which came to an end with the passage of time. There is nothing on record to show bona fide of appellant's averments when record of Commissioner of Service Tax does not contain the appeal papers said to have been filed in his office under an acknowledgement. Appellate authority also has no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12.3.2010. When the appellant got recovery notice, it could know that its appeal had not reached to the appropriate forum for which it filed a fresh appeal before the Commissioner of Central Excise (Appeals) on 2.1.2012. This confusion resulted in delay of more than two years and that was not considered by the Commissioner (Appeals). He dismissed the appeal as time-barred. He further relied on a letter dated 26.12.2011 (Ref: P.No.38 of the appeal folder) to submit that a letter by M/s. Gopinath and Sharma, the appellant addressing to the learned Commissioner (Appeals) stated that appeal was filed in time in the Office of Commissioner of Service Tax and such a mistake was rectified by filing a fresh appeal before learned Commissioner (Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Order-in-Original on 30th December, 2009 and filed appeal before learned Commissioner (Appeals) on 2.1.2012. So also admittedly, there was a delay of more than two years in seeking appeal remedy before the learned first appellate authority. According to section 85 of the Finance Act, 1994, learned first appellate authority has no power to condone delay beyond the statutory period of three months plus the discretionary period of another three months under the proviso to sub-section 3(3) of section 85 of Finance Act, 1994. Law is also laid down in this regard by Apex Court in the case of Singh Enterprises v. CCE 2008 (221) ELT 163 holding that a statutory authority is not vested with power to exercise any discretion beyond the perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to go to the file of public officer to entertain a frivolous claim, that shall be a bonus to an indolent who has scanty regard to law and all along was negligent to pursue its remedy before appropriate forum. 8. We are conscious that dismissal of the appeal referred to above shall make the appellant remediless under the Act. But equally we have no power to drag Revenue to litigation reviving a litigation which came to an end with the passage of time. There is nothing on record to show bona fide of appellant's averments when record of learned Commissioner of Service Tax does not contain the appeal papers said to have been filed in his office under an acknowledgement. This handicaps the appellant to lead the matter further. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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