Rejection of appeal by Commissioner Appeals for delay beyond condonable period.

PJ/CASE LAW/2015-16/2848

Case:- SIDDRAMAPPA S. YELAMALI VERSUSCOMMISSIONER OF C. EX., BELGAUM

Citation:- 2015 (39) S.T.R. 605 (Kar.)

Brief facts:-This appeal is directed against the Final Order No. 1327/2010 dated 20-10-2010 passed by the Appellate Tribunal in Appeal No. ST/642/2010 [2011 (22)S.T.R.658 (Tri.-Bang.)].
By the impugned order, the Appellate Tribunal has dismissed the appeal confirming the order passed by the Commissioner (Appeals) in Appeal No. 59/2010.
Aggrieved by that, the appellant has filed this appeal.
Briefly stated facts are:
The appellant is a partner in M/s. Sangameshwar Agro Services. His son Mr. Murugesh S. Yelamali, was the Managing Partner. Show cause notice dated 27-2-2008 demanding Service Tax was issued calling upon the firm to pay Service Tax of Rs. 24,96,696/- and Rs. 2,62,605/- for the period from October 2005 to February 2007 and January 2007 to September 2007. Mr. Murugesh S. Yelamani, the son of the appellant who was the Managing Partner replied the show cause notice through his counsel. Thereafter, the order dated 27-2-2009 came to be passed by the Joint Commissioner, Central Excise, Belgaum, confirming the demand proposed in the show cause notice. Interest and penalties were also imposed. Aggrieved by that, the appellant preferred an appeal in Appeal No. 59/2010 before the Commissioner of Central Excise (Appeals) on 5-10-2009. The Commissioner by his order dated 27-1-2010 has dismissed the appeal on the ground that the appeal is barred by time and the Commissioner has no power to condone the delay of more than three months. The appellant preferred an appeal before the Appellate Tribunal in ST No. 642/2010. The Appellate Tribunal by its order dated 20-10-2010 has dismissed the appeal confirming the order passed by the Commissioner. Therefore, this appeal.
Heard the learned counsel for the appellant and also the learned counsel for the respondents.
The point that arises for their consideration is;
Whether in the facts and circumstances of the case, the Tribunal was justified in holding that there was delay in filing the appeal before the Commissioner of Central Excise (Appeals), Mangalore?

Appellant’s contention:-The learned counsel for the appellant contended that the appellant’s son was the Managing Partner. The original order was passed on 27-2-2009 by the Joint Commissioner of Central Excise, Belgaum. It was received by the appellant’s son on 16-3-2009. Appellant’s son committed suicide on 23-6-2009. Thereafter, the appellant came to know about the order only on 22-9-2009 and preferred an appeal before the Commissioner of Central Excise (Appeals) on 5-10-2009 which was in time and therefore, Commissioner was not justified in dismissing the appeal as barred by time. He also submitted that there was no delay as the appeal was preferred in time from the date of knowledge. Further he submitted that the Appellate Tribunal has erred in confirming the order passed by the Commissioner of Central Excise (Appeals). He therefore submitted that the impugned order cannot be sustained in law. He also invited their attention to Section 85 of the Finance Act and submitted that any person aggrieved can prefer an appeal within three months from the date of knowledge. The appellant came to know about the order only on 22-9-2009 and therefore, the appeal was in time. He therefore submitted that the Tribunal as well as the Commissioner of Central Excise (Appeals) were not justified in dismissing the appeal and therefore, the impugned order cannot be sustained in law.

Respondent’s contention:-As against this, learned counsel for the respondent submitted that the Tribunal as well as the Commissioner of Central Excise (Appeals) have rightly dismissed the appeal as barred by time. Further, he submitted that under Section 85, an appeal can be preferred within three months from the date of receipt of decision or order. In the present case, the order has been received by the son of the appellant who was the Managing Partner on 16-3-2009. The appellant’s son had enough time to prefer the appeal. Appellant’s son has participated in the proceedings. The knowledge can be attributed to the appellant also. Therefore, the appeal was not in time. The Tribunal as well as the Commissioner were justified in dismissing the appeal.

Reasoning of judgment:- They have carefully considered the submissions made by the learned counsel for the parties.
Section 85 of the Finance Act, 1994, reads as follows :
“85. Appeals to the Commissioner of Central Excise (Appeals). - (1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).
(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner,
(3) An appeal shall be presented within three months from the date of receipt of the decision or order of such adjudicating authority, relating to Service Tax, interest or penalty under this Chapter;
Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.”
It is clear, Section 85 provides that any person aggrieved by any decision or order passed by an Adjudicating Authority can prefer an appeal within three months. Thereafter, if the Commissioner is satisfied that the appellant was prevented by sufficient cause from preferring the appeal, the Commissioner can allow the appeal to be preferred within further period of three months and not beyond that.
In the present case, the appeal has been preferred on 5-10-2009. The order has been passed by the Adjudicating Authority on 27-2-2009. Copy of the order has been received by the ”appellant’s son who was the Managing Partner on 16-3-2009.” Appellant’s son has died on 23-6-2009. There was enough time to prefer the appeal. The appellant’s son has participated in the proceedings as the Managing Partner of the firm. The knowledge can be attributed to the appellant also who is a partner. Therefore, it cannot be said the appellant was not aware of the order. The explanation offered is unacceptable. In the circumstances, in their considered view, the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. The appellate Tribunal has rightly confirmed it. The appeal should have been preferred within three months. The order has been received on 16-3-2009. The appeal has been preferred on 5-10-2009. The appeal was clearly barred by time. The Commissioner can condone the delay of three months and not beyond that. Therefore, the Commissioner of Central Excise (Appeals) was justified in dismissing the appeal as barred by time. It is rightly confirmed by the appellate Tribunal. Therefore, the impugned order does not, call for any interference. There is no merit in this appeal and therefore, it is liable to be dismissed.
Accordingly, the appeal is dismissed.

Decision:- Appeal dismissed.

Comment:-The essence of the case is that it is not possible for the Commissioner Appeals to condone the delay in filing appeal if the period of delay is more than the statutory condonable limit. In the present case, as the appellant’s son had participated in proceedings as Managing Partner of firm, there was enough time to prefer appeal. The knowledge could be attributed to appellant who was also partner, and hence, it could not be considered that he was unaware of order. Appeal should have been preferred within three months from the date of receipt of the decision or order of such adjudicating authority. Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months. In this case, the appeal was filed beyond the condonable period and so appeal was dismissed as time barred.

Prepared by:- Monika Tak

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PJ/CASE LAW/2015-16/2848

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