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2019 (12) TMI 119

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..... since the impugned appeal was much beyond 30 days/one month, it being filed after a delay of one year, the Commissioner (Appeals) had dismissed the appeal being barred by the period of limitation. The statute itself provide a specific period during for which the Commissioner (Appeals) can exercise the discretion to condone the delay that to on being satisfied that a sufficient cause has been show for not presenting the appeal in the appropriate time. From the order under challenge, it is apparent that there was no reason for delay was mentioned in the appeal. From the record of present appeal, there is apparent a letter written by the appellant to Commissioner (Appeals) on 30 May, 2018 praying for treating the said letter as a mercy petiti .....

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..... presentative that the order under challenge that is the order in appeal has dismissed the first appeal of the appellant only on the ground of limitation as the appeal was filed after a delay of one year from the date of order in original 2. Keeping in view the above noticed conduct of the appellant, I have no hesitation to hold that the appellant is not interested in pursuing the impugned appeal. It is also clear that the scope of the impugned appeal is very narrow that is confined to the aspect of limitation. Accordingly, I proceed to decide the appeal as follows: 3. The appellant M/s Memento Restaurant is engaged in providing restaurant service. While acting on an intelligence, department observed that despite providing the taxable servic .....

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..... ection 85(3A) of Finance Act, 1994. Commissioner (Appeals) has clearly recorded that he had the power to condone delay only coupled to the extent of 30 days beyond 60 days from the date of the order to be challenged and since the impugned appeal was much beyond 30 days/one month, it being filed after a delay of one year, the Commissioner (Appeals) had dismissed the appeal being barred by the period of limitation. 5. Section 85(3A) of the Finance Act, 1994, it reads as follows: 85 (3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under t .....

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..... s business to have been closed since May, 2015. Nothing is apparent on record about any information ever been given by the appellant to the Department in the said respect rather his address is same since the issuance of the Show Cause Notice till the impugned order under challenge. Accordingly, none of these reasons are opined sufficient to explain the delay has huge as that of one year beyond the period of limitation. 7. Above all, Section 85(3A) of Finance Act makes it clear that Commissioner is not empowered to condone any delay in filing appeal in excess of limitation period prescribed under the said Section as was held by this Tribunal in the case of Modern Syntex (I) Ltd. Vs. Commissioner of Central Excise, Jaipur - 2004 (165) ELT 285 .....

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