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M/s Eblitz Inc. Versus Additional Commissioner of Service Tax, Commissioner of Service Tax (Appeals)

2015 (9) TMI 836 - KARNATAKA HIGH COURT

Condonation of delay - whether the first appellate authority i.e., second respondent herein was justified in dismissing the appeal filed by petitioner who is a service provider on the ground that there is delay of 78 days in filing the appeal - Held that:- Appeal came to be presented on 13.09.2012 and as such petitioner himself has filed an application seeking for condonation of delay of 78 days in filing the appeal. - In the absence of any proof being tendered petitioner cannot be heard to cont .....

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-Res) - Dated:- 5-3-2015 - Aravind Kumar, J. For the Petitioner : Sri Sanmathi E I , Adv For the Respondent : None ORDER Heard Sri.E.I.Sanmathi, learned counsel appearing for petitioner and Sri.Jeevan S. Neeralgi, learned panel counsel appearing for respondents. 2. The short point involved in the present writ petition is whether the first appellate authority i.e., second respondent herein was justified in dismissing the appeal filed by petitioner who is a service provider on the ground that ther .....

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er on 31.01.2012 as per Annexure-C whereunder the demand for Service tax and Cess payable thereunder has been affirmed by confirming the show cause notice and amounts already paid came to be appropriated by further imposing interest and penalty. 4. As per sub-section(3) of Section 85 of Finance Act, 1994 (as it existed then) appeal had to be filed within 90 days from the date of order. In the instant case it is not in dispute that appeal came to be presented on 13.09.2012 and as such petitioner .....

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to arrive at a conclusion that order in original dated 31.01.2012 Annexure-C came to be served on petitioner on 11.09.2012 so as to exclude the period from date of order till date of service. In the absence of any proof being tendered petitioner cannot be heard to contend that this court in exercise of power under Article 226 of Constitution of India can condone such delay. When the statue prescribes the period of 90 days as the limitation to file an appeal and there being no provision under th .....

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entral Excise (Appeals-II), Bengaluru reported in 2013 (31) STR 275 (Kar) and Division Bench of this court has held since the express provision has stipulated for filing of appeals by fixing the limitation, it would override the provision of Limitation Act, 1963 which is the general law and hence even if there is sufficient cause for condonation of delay beyond six months (in the said case) such delay cannot be condoned. It has been held by Division Bench as follows: "6. A perusal of the af .....

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refer an appeal from the date of receipt of the decision or order of such Adjudicating Authority. A proviso to the said provision makes it clear that if the appeal is not filed within three months as prescribed under sub-Section 3 of Section 85, the Commissioner of Central Excise (Appeals) is vested with the power to condone the delay if sufficient cause is made out for the delay in preferring the appeal. However, the said delay cannot exceed three months in addition to the period of three month .....

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se of an appeal against the said appellate order to the Tribunal, three months time is prescribed for preferring such appeal, whereas in Section 86 no provision is made for condoning the delay. In the absence of any express provision for condoning the delay in Section 86, Section 5 of the Limitation Act is attracted. Therefore, under the scheme of the Act when specific period of limitation is provided under the Act and also for condoning the delay, the discretion, which is vested in the Appellat .....

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